Sunday, January 15, 2012

A Biased MLB Decision, Contrary to Facts Presented in Evidence




CSC likely made a calculated decision to keep employees associated with it (including special operating agency, Organization Staff Development (OSD) under its direct control, and away from the Manitoba Government Employees Union's (MGEU) collective bargaining unit. No doubt, it did so in an attempt to free itself from having to deal with the union and allow it free reign to hire (without posting), to intimidate, to harass, and to terminate--free of union interference.


The Labour Relations Act states an employer cannot interfere with union participation for illegitimate purposes or in bad faith. The scheme to deny non-essential classifications such as a clerk packing workshop material from union representation is no doubt in contravention of Sections 5 and 6 of the Act.   OSD, as a special operating agency with the province, is thereby not a Crown Corporation: OSD files its own annual reports with the Minister of Finance, separate and apart from the Civil Service Commission.
 
It is therefore quite a stretch to claim that exclusion was done on the basis that OSD was "staff of CSC" and as a result, was excluded from union representation. OSD is not involved in human relations, or is its work confidential, nor does it deal with personnel matters--all issues that fall under the mandate of CSC: executive staff of CSC does meet the criterion of exclusion.
 
In any event, exclusion is not to be done by a brush of a whole department, but by individual position classifications based on that specific criterion and only then, by agreement with the union. At that point, a list of the positions and reasons for exclusion of each and every classification position must be provided to the Manitoba Labour Board with copy to the union. That did not happen.


There were ongoing communications between myself and union reps from September to December 2008: a mutual belief that CSC was in breach of the agreement and the Act. as clearly neither the union nor  the Labour Board had any knowledge that an entire department had been excluded from union representation: there was no agreement, and there was no list. 
See posting: Electronic Signatures, rubber stamping - "Good Grief" as to how Levene, as a Human Rights Commission Board member, took a foul shot for MHRC to kick my complaint out of 'play' but was given no penalty.


So what changed with MGEU in January 2009?

 
MGEU legal counsel, David Lewis, likely found it to be in the best interests of the union to side with Government -- after all, was I--they used me--then abused me. Quite the legal strategy given all parties, including the Labour Board knew deliberations had, by then, commenced regarding OSD exclusion, as disclosed by  Elliott Leven wherein he "identified himself as "one of union legal counsel" against CSC due to lost union dues disclosed in a 30-minute freebie consult with Marie. Seating for two more lawyers for the Out to Lunch - More Cowbell. Just put it on the union dues tab.

Welcome to Winnipeg's close knit legal community:  accessibility to legal representation in a city of zero degrees of separation is non-existent. The only legal advice to be had is "Costco-like": You get to sample the majority of law firms in Winnipeg and get your fill of them for free. Please keep in mind; if you are not part of the solution -- you are part of the problem (and mobbing in this case).


As the matter never went to hearing, the decision was made by government civil servants (staff of the Manitoba Labour Board--said to be independent) but in reality, acting under the authority and direction of Government, its employer. The median time for the pre-hearing investigation to see if there is enough evidence (or a need for cross-examination of the evidence) is 48 days. Government employees stonewalled the decision for 260 days; made decisions contrary to the evidence submitted (much of which was conflicting testimony from CSC through its lawyer, which required cross-examination) and dismissed the complaint. When asked for written decisions, I was simply told: "It was obvious."


Staff clearly usurped its function as a pre-hearing process and decided instead to by-pass the part that makes it an unbiased and independent tribunal. (That strategy worked so well that MHRC followed suit; stonewalling the process for two years before starting its investigation and then ignored and/or deleted evidence before dismissing the complaint--without going to hearing.)


Given the imbalance of power, and in the interests of fairness and humanity, an unrepresented employee (with a known disability) reaching out in distress for help should have been given some assistance to ensure there was no abuse of power. There was none offered. The fact Government chose not to use their own government lawyers (Civil Legal Services) is evidence that it had no intention, from the onset, to act fairly--or to abide by the spirit and letter of the law. Government contracted private law firm, Thompson Dorfman Sweatman (specialists in labour and human rights law) to launch an aggressive and criminal attack.


The Labour Board accepted the Government's testimony (first of many varying versions) that it was my decision to terminate employment, and alleged I had made no attempt to advise otherwise: Testimony later refuted as corroborated by my documents presented and on record: Government's retraction: I guess it was their decision to terminate, and oh yeah, there was a pending (and ignored) appeal filed with the CSC.


After my rights were violated at the termination meeting of June 4, 2008, I followed a very methodical approach, as prescribed by Government, to deal in a respectful manner with the issues. Requests to meet with the Government's Employee Assistance Program ("EAP") went unanswered. Through information accessed, I discovered that EAP--'staff of the CSC' in all respects--was assisting the employer rather than me--the employee: contrary to its mandate.


In a letter dated October 15, 2008 from the Director of EAP to CSC, Frank Cantafio as to the manner my file was handled stated, "...As the Director of the program I would say that EAP did not meet the standard of service that clients have come to expect..." (Note: Shortly thereafter Cantafio resigned as Director of EAP. He is also noted in this blog (and according to information accessed through FIPPA) as disagreeing with CSC for delivering the Herrmann Brain Project (aka 'CSC profiling of its employees) see "Manitobans Wake Up and Get the Scoop on Gov't Spending!")


Government falsely testified to the Labour Board that a private EAP was made available to all employees and that I "was well aware of this option." That option was not available until the fall of 2009, one year after termination of my employment.: Perjury is a crime. See When Manitoba Justice Becomes Criminal).


As a last resort to address the unfair labour practices, and as prescribed by Government, I had filed a letter of appeal dated June 25, 2008 with the CSC Director of Human Resources Program, Sylvie Lavergne. I was never contacted to provide details for investigation. Several attempts to follow up ensued and September 2008 I emailed once again requesting a response, particularly as it related to the Human Rights Code violation. Again--no response was CSC's response. Another attempt was made November 2008, this time through the Labour Board hopeful that the Board would support mediation. Once again, I received no response from the Board or CSC or its lawyer.


No response being the common thread of Government's lawyer's preferred strategy when dealing with someone whom they perceived as invisible and vulnerable. With no public attention, and no one to intervene, why bother? Clearly a 'hard ball' tactic that TDS lawyer, Rob Olson, as Keynote Speaker strictly advises against during its lectures on Human Rights and Labour Law. (see Resources below)


Somewhere along the process, the matter clearly went off the rails from harassment by one supervisor to a mobbing; and for what purpose? There was no request for monetary compensation or punitive damages, nor did I ever ask (egad!) for my job back. All I wanted was to make things right; to protect my reputation as an exemplary employee; to sustain and maintain recovery, and to move on to a harassment-free work environment.


After twenty years of successfully taking personal responsibility for my own well-being as well as five years of service to the Government of Manitoba as an exemplary employee (also with a perfect attendance prior to OSD), I deserved much more than what I got.


Government has a duty to all persons with mental / intellectual disabilities. Instead, Government basically said 'you are less than nothing -- you have no value'. As such I was alienated from co-workers, previously considered 'friends', denied all civil rights of a complaint process and suffered losses much greater than just wages and employment. By not acknowledging a person's very existence--like not responding to communications--one can easily see how that would lead anyone, not just someone with a disability, to question their own self-worth. Is it any wonder the suicide rate is so high in this country?


Is this the true north we are supposedly so proud of? If this is the cumulative genius of Government's best, then clearly its best just won't do. What a waste of all the money spent on policies, boards, commissions, research, forum groups and reports -- totally Out to Lunch - More Cowbell.
All men make mistakes, but a good man yields when he knows his course is wrong, and repairs the evil. The only crime is pride.”
- Sophocles, Antigone
Resources:
 
At the Mercy of the Mob; A summary of research on workplace mobbing by Prof. Kenneth Westhues, University of Waterloo, Published in OHS Canada, Canada's Occupational Health & Safety Magagzine, Vol. 18, No. 8, December 2002, pp 30-36. Published on the web, January 2003.
"Employment Termination: Do's Don'ts and Dollars" "Considerations for Employers When Contemplating Employee Terminations, How the Hiring Process Might Affect the Termination Process, and How Much Terminations Might Cost" source: Thompson Dorfman Sweatman
Quote found on Thompson Dorfman Sweatman website:
Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identify, self worth and emotional well being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect.

DECISIONS OF THE SUPREME COURT OF CANADA - An Overview of the Duty to Accommodate
 

1 comment:

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