OPS of the Future: Grievances
Mr. Orsini, I am following up on my first email sent to you January 18, 2018 to provide some more of my concerns and points of view on what I perceive to be matters for your consideration as you help to guide the OPS into the future.
In that first message I tried to introduce you to areas of concerns and provide some examples to illustrate why I am sharing concerns on behalf of OPSEU members that I feel you are the person to guide any discussion and consideration for positive change. As I shared in that letter, I believe in the vision you have stated you have and I believe that the tool to make it a reality is the Respectful Workplace Policy. If that policy is allowed to cover all that I envision it can and should, the OPS will evolve in a positive way.
I am going to share the concerns I have in regard to the OPSEU grievance process as I feel the concept of respect in the workplace is potentially lacking in that process. While I share, I hope that anyone who reads this keeps in mind the OPS Values as well. I believe that there should never be any exceptions to according respect or applying the Values. I am always disappointed when I or others can clearly demonstrate how those values are either ignored or completely discarded, yet it seems to matter not. Those values and respect should be evident in every aspect of OPS activities and interactions and I expect that you will agree.
As I have shared as to my appreciation and respect for the Respectful Workplace Policy due to how it was thoughtfully written and put together, there are parts in the OPSEU Collective Agreement that are also written in a meaningful way as well as with a clear statement of commitment.
THE OPSEU COLLECTIVE AGREEMENT
So, in regard to grievances and the way they are promoted in the Preamble and Article 22 of the OPSEU CA as a way to achieve resolution:
- The purpose of these Agreements between the Employer and the Union is to establish and maintain:
- satisfactory working conditions and terms of employment for all employees who are subject to these Agreements;
- a procedure for the prompt and equitable handling of grievances and disputes.
- It is understood that the provisions of these Agreements apply equally to all employees and that the parties are committed to work together on joint initiatives that further support diversity in the workplace.
The parties, therefore, agree as follows: “
“22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.
22.14.4 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes.”
(emphasis added by me)
In those passages you see the words prompt, equitable, equally, committed, agree, together, quickly, amicable and expeditious. Those words are reflective of a respectful process and one that seems to be committed to exemplifying the Values of the OPS.
There is nothing wrong with the way this is written in respect to the grievance process, except that there should be acknowledgement in the CA that a violation of the Ontario Human Rights Code is a violation of the Collective Agreement. This glaring omission as I shared in the previous message has serious implications and has caused issues for many employees.
As indicated last week, a senior management member did not believe me when I shared that info and even after sharing the details from the Tribunal’s website, they would not acknowledge that connection as a fact. That is very disturbing for an organization that wants to be moving into the future when the future we are moving to includes increased recognition of all rights and protections under the Code.
So in the current grievance process as we have experienced it, a fair number of concerns can or do have a Code based component. If all of the statements shared above from the OPSEU Collective Agreement are to ring true, then this issue has to be corrected immediately.
DESIGNEES IN OUR SYSTEM
With the current process of having a management representative act as a designee for grievances, if there is no recognition of the relationship of the Code to the CA, then we are putting employees in a position where their rights are potentially being denied and negative impacts of doing so can have harmful consequences.
I believe that it is shameful that many grievances I am aware of, are reported as “Denied” at the Formal Resolution Stage (FRS), when they really should not be. More recently we made sure the designees have had information before them from the Tribunal’s website (provided by the union) in the form of their direction to employers as to how to deal with various code based concerns and situations, as related to the grievance(s) being heard. Yet the designee will often make a conscious decision to “Deny” the grievance.
I ask now, if anyone acting as a designee is not aware of the direction from the Tribunal and the resources available to employers for handling Code based concerns in the workplace, should they really be making a decision on whether or not the Code has been violated such that a decision of “Denied” is rendered?
The Tribunal shares the following:
“Employers violate the Code when they:
- directly or indirectly, intentionally or unintentionally infringe the Code
- constructively discriminate
- do not directly infringe the Code but rather authorize, condone, adopt or ratify behaviour that is contrary to the Code.”
Designees should not have to wonder, is denying a grievance without knowledge of the code going to lead to me being seen as “condoning” behavior, actions and decisions that may or do violate the Code? They should be given training to help them understand if their decision is just, based on the circumstances.
FACTS and CONCERNS
At this time I would like to share with you a list of concerns and facts about the grievance process before anything is decided if a grievance should go to arbitration.
The employer controls the process
In matter of Health and Safety, Accommodation, there may be negative impacts to the griever that the employer’s actions seem to indicate that they just don’t care about.
Management can just ignore the truth and any justification as to why a grievance should be upheld. (I am not saying that they always do, but it has happened)
Often very substantial information/documentation is submitted on behalf of a griever, yet the employer disrespects the efforts made on the union side and will not provide a single piece of rationale as to why the union position is unjustified or inadequate.
Management can deny a grievance, just because they can
Management does not provide a rationale as to why a grievance at the Formal Resolution Stage is denied. In my opinion this alone is extremely disrespectful regardless of what understanding or reasoning will be offered for this omission.
Go ahead, send it to Arbitration, is pretty much expected as a unspoken follow-up to a FRS denial.
Deny, delay and demoralize
I feel justified in sharing those concerns/thoughts because I have experienced or witnessed most of them personally in the efforts I have made in representing OPSEU members.
The first few items are undeniable truths and do have an impact on the process and the griever based on how the employer wants to have the situation play out. I say that because I have had several grievances (for different ministries) where different designees have confided in me that they wanted to find a resolution to a grievance they were participating in, yet management absolutely would not allow them to try to make it happen. That is relevant to the middle items in the list above.
ARE DESIGNEES EXPOSED TO RISK?
Let’s look at that type of scenario in light of what was shared earlier about a designee respecting a griever’s Human Rights and the concern about condoning, adopting or ratifying (willingly or not) behavior that violates the code. In those instances where the designee did see the need to address Code based concerns, the management they were “supporting” in the role of designee pretty much forced them to violate the Code.
No designee should ever be put into that situation and the fact that I was made aware of it on five occasions demonstrates to me that it likely is not an isolated concern. Designees should have autonomy and support in situations such as this as well as the ability to share at a higher level their concerns about following the direction that they are being given, without fear of reprisal.
I personally feel that an open and honest response to a grievance in such cases would be to allow a statement from the designee such as this:
“In regard to the grievance I officiated, I did see the merit in the presentation and information to support the griever’s concerns and from that, I made an honest effort to work with the management of the branch to try to come to some resolution. It is clear that one is not possible at this time. Therefore I share that the grievance is unresolved at this Formal Resolution Process and the griever can decide if they choose to present it to the GSB for mediation/arbitration.”
A statement such as that shows respect for the individual and those supporting them as well respecting the words as written in the Collective Agreement “to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this Agreement, including any question as to whether a matter is arbitrable.” That would be refreshing and one of the finest examples of a Respectful Workplace simply because it speaks to the truth and it recognizes that the griever has brought concerns forward that deserve the respect the process should guarantee.
SOME RESPECTFUL SUGGESTIONS FOR CHANGE
Of course when a grievance is, in the opinion of management, one that should be denied, it would be equally respectful to all involved to share the rationale as to why that is the decision being made. In addition to this being another respectful act, there is also the benefit of allowing all parties to learn from these processes to help avoid going through the same thing over and over when it might be clearly demonstrated as to why it is not worthwhile or it is unnecessary. That reason alone can have a significant cost savings for the administration budget of the OPS and as such it should be seriously considered.
The cost factor above can be expanded greatly if it can be demonstrated that there is a connection to previous concerns and that in keeping the results “hidden” behind a confidentiality clause, the employer has increased their liability by not sharing information that may have kept others from potential harm afterwards.
I personally believe that the best way to reduce liability concerns is to have an open and transparent process so that those whose actions would put the employer in a liability situation will clearly see the impact of those actions and responses. Couple that with a commitment to accept accountability, this approach can serve as a strong message to deter/address future concerns.
A resolution process either:
has the potential to be the most disheartening and demoralizing event an employee can experience. It could have a huge negative impact on the morale and dedication as well as the health and productivity of a griever.
Or it can be:
the most reassuring and uplifting experience.
Which is a better fit for the OPS of the Future?
What follows is again from the Tribunal as their information as to what should be included in any internal settlement for a Human Rights complaint.
“ii) Base settlements on human rights remedies that may be available:
Any remedy mutually agreed on by the parties should take into account the actual losses experienced by the claimant, remedies available under human rights legislation and the interests of all the parties in a fair and speedy resolution of the matter.
The principle behind human rights remedies is to put the claimant in the position they would have been in had they not been exposed to discrimination, as long as they have taken steps to minimize their losses (this is called “mitigation of damages”). A further goal of human rights remedies is to protect the public interest and make sure that measures are put in place to prevent further discrimination. If a claimant is successful in proving discrimination and entitlement to a remedy, the Human Rights Tribunal of Ontario could order the company, and any people personally named in the complaint, to do any of the following:
- pay monetary compensation to the claimant for loss of earnings or job opportunities (if the claimant can prove that he or she acted to minimize losses)
- pay interest to the claimant on the money awarded dating back to the date the Codewas violated
- pay damages to the claimant for the mental anguish suffered because of the violation
- pay general damages to the claimant for the infringement of the right and impact on his or her dignity and self-worth
- put the claimant on a paid leave of absence until compliance with the Tribunal’s order has been achieved
- promote or re-instate the claimant to the position he or she would have held except for the discrimination
- change policies that have been found to be discriminatory or have a discriminatory impact
- put in place training initiatives (this may include requirements to hire a consultant, involve the claimant in designing such training and/or make such sessions mandatory for employees)
- set up a process for resolving internal human rights complaints. This could include a requirement to have complaints of workplace harassment and discrimination investigated or mediated by an external third party
- develop and introduce effective anti-discrimination and harassment policies. An employer may be required to hire a consultant to help with this. Employers could also have to include compliance with such policies as an element of the performance appraisals for supervisors and managers
- monitor of compliance with the terms of an order or settlement (for example, reporting to the Tribunal or a third party designated by the Tribunal) on an ongoing basis
- make available the Tribunal’s decision, or a summary of it, in the workplace and bring it to the attention of employees.”
My experience with grievances in the Formal Resolution Stage is that pretty much none of the above actually happens. There is a great reluctance on the part of the employer to actually address the concerns as described above. The following, also from the Tribunal may shed some light on why.
“i) Practical reasons to resolve complaints early:
In the Commission’s experience, there are many cases that give rise to costly litigation because an employer was not willing to provide any form of redress to an employee who has most likely experienced discrimination in the workplace and is seeking modest compensation. Many employers have expressed the feeling that an employee’s requests for compensation are equivalent to “black-mail.” Also, employers often say that as a matter of “principle” they will not pay any amount of money to an employee based on a violation of human rights, because this would open the “floodgates” to a stream of human rights claims that have no merit.
While this is an understandable position, it is not normally in an employer’s interests to take this approach. In most cases, the costs of such posturing far exceed the benefits. If a human rights claim is resolved early on, there is usually a recognition by both sides that neither party knows whether or not the claim would ultimately be successful. Thus, a claimant may accept much less than he or she would otherwise be entitled to. The costs of defending against a claim all the way to the end of proceedings before a court or tribunal may be major if the employer uses lawyers.”
What is more important to the OPS of the Future? Treating every situation as respectfully as possible for all aspects of the situation? Or ignoring the advice of the Tribunal on how to address redress for concerns that are valid just because of “principle” that would be in total opposition to the Respectful Workplace culture?
I will state that I believe that the more we bring these concerns forward and share what the results are (where applicable) the likely result will be a positive effect because all OPS employees will see what the expectations are, what the results of violations can be and there will be opportunities to effectively either address inappropriate behavior or to deal with those who do not learn to accept the value of respecting Code based rights. I believe that following such a course of action can and would reduce the amount of time and effort spent on dealing with Human Rights concerns as “doing the right thing” in regard to the Code will be positively reinforced and become an accepted standard.
I thank all who have read this far and I appreciate you doing so. I will be preparing another post and letter to you Mr. Orsini where I again expand on concerns in the OPS where a more comprehensive acceptance of the meaning of “Respectful Workplace” can yield benefits and help you in your drive to take the OPS into the future.
President, OPSEU Local 468 Kingston