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Arbitrator rules employer presentation not discriminatory or anti-union

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Image: sscreations|Freedigitalphotos.net

In OPSEU (Brydges et al) and the Ministry of Transportation GSB 2012-1012, Arbitrator Dissanayake dismissed a grievance by a number of Ministry of Transportation (“MOT”) employees. The employees alleged that an employer presentation asking them to be happy/content with their wages and benefits and comparing them to poor and starving people in developing countries was both discriminatory under the Ontario Human Rights Code (“Code”) and constituted anti-union discrimination which violated the collective agreement (particularly because of upcoming collective bargaining). A key reason the case was dismissed is because the union was unable to prove any actual harm to any of its members.

In 2012 a regional manager at the MOT put on a PowerPoint presentation for a number of transportation enforcement officers represented by the Ontario Public Service Employees’ Union (“OPSEU”). A number of the slides in the presentation asked the bargaining unit employees to consider how happy they were to have a job and not to complain about salary increases or the level of benefits especially when they compared themselves to people in developing countries. OPSEU’s written particulars alleged among other things:

The presentation contained graphic imagery of poverty in the developing world and compared this imagery with “trivial” problems in the developed world. For example, the third slides asks “If you think your salary is low, how about her?” accompanied by a photo of a child.

The fifteen slides ask “Why do we complain?” Ms. Strachan, when she received this slide felt this was a direct comment on interaction with the Union, and grievance, as well as health and safety complaints.

The sixteenth slide states, “Let’s Have New Expectations?” Ms. Strachan again felt it was a direct comment on interactions with the Union and grievances as well as health and safety complaints.

OPSEU alleged that a number of the pictures depicted people in poverty and people of colour and therefore this was discriminatory contrary to the Code. The Arbitrator dismissed this part of the grievance on the basis OPSEU had failed to establish any of its members were from a protected group or that the presentation had created a poisoned atmosphere. He writes:

In the present case, there is no assertion that any of the grievors were members of a protected group of had a protected characteristic. Nor are any facts asserted that the workplace became poisoned for any of them because of a protected characteristics. The grievors may well have been offended by the presentation. However, there are no facts asserted that any of them had a protected characteristic let alone exposure to a poisoned work environment because of such a characteristic.

OPSEU also alleged that the presentation constitute anti-union discrimination. However, this argument was also dismissed because no facts were proven to prove any harm resulted. Rather, the Arbitrator ruled that “the Employer’s “message” that they should be content with their terms and conditions of employment by itself, with no saction, actual or threatened, attached in the even they seek more favourable terms and conditions, does not infringe the right under article 3.2 to freedom from discrimination by reason of membership in the union or union activity.

This case demonstrates that while a number of the employees though the Presentation was in poor taste and poor form, they had to show some type of harm in order for it to succeed. The absence of any facts to prove any harm resulted in the dismissal of the grievance.

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Simon Heath

Employment Lawyer and principal at Heath Law, Employment Lawyers
Simon Heath, BA, MIR, LLB, is the Principal of Heath Law, Employment Lawyers in Mississauga, Ontario. Simon represents both public and private-sector employers and employees (unionized and non-unionized) at all stages of the employment relationship with a focus in the areas of employment law, labour law and human rights law; these representations are made at all levels of courts and all administrative tribunals. Read more
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