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HomeMy WebLinkAbout1989-1798.Fung & Anand.91-04-16. · -. ;~: ',..... ONTARIO EMPLOY£S DELA COURONNE ..' .~ . .: CROWN EMPL 0 YEE$ DE £ 'ON TA F~IO GRIEVANCE COMMISSION DE SE~LEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STRE~ WEST, SUITE 21~, TORONTO, ONTA~, ~G IZ8 ~ONE/TE~PHONE: (4~6J 326-r388 BE~EN BEFOg: $. Stewa~ Vice-~ai~erson J. Ca~thers M~er FOR ~ ~.' ~and Scott a A en ' Barriskers & Solicitors EMP~YE~ Co~sel Fraser & Beatty Barristers FOR THE : . P.. Thach~ THI~ ~TY Senior Assessor . Minist~ of Revenue HE~ING: . Janua~ 9, 10, 11, 1991. INTERIM DECISION There are two grievances before the Board in this proceeding. Mr. Fung's grievance is dated November 21, 1989, and Mr. Anand's grievance is dated January 18, 1990. Both Mr. Fuhg and Mr. Anand are employed by the Ministry of RevenUe as property assessors. Their positions are classified as Property Assessor 3. The grievors were both unsuccessful applicants for two positions of senior assessor for the City of Toronto assessment office which is classified as Property Assessor 4. The successful applicants were P. Thachuk and A, Lowry.. Both successful applicants were notified of this proceeding and their right to participate. Mr. Lowry elected not to attend the Rearing. Mr. Thachuk 'attended and participated for part of the hearing. The Empl'oyer raised three pr'eliminary issues. The Board heard evidence and argument with respect.to these matters only. The first preliminary issue relates to %he timeliness of Mr. Fung's grievance. The second issue is whether the position of the Union discloses a fundamental alteration to the nature of the grievances which should not be allowed by the Board both because of the alleged change itself a~d because of the nature of the ~'ichange, which was characterized by the Employer as a "human rights" matter. The third preliminary issue is whether the Union should be 2 prohibited from calling expert evidence dealing with cultural bias in interviews. .~ .... . : 4. In order to address these matters it is, appropriate examine the text of the grievances..;. The text~of Mr..Fung's: grievance states as follows: ~,~'. .' statement of Grievance: - : ..... - -~..:.'~- .-: ,'~. ', , I grieve against management and in particular. Mr. S. Stephen Regional Assessment Co~ssioner for violating ~ticle 4 of, the Coliective .Agre~ent;. and/also for shying discriminato~ actions t~ards me. Settl~ent Desired (1) A written explanation as to why I was not included in a "Post Job Filling Intervi~With/Mr~)cStephen'~'~ (2) Stop discr~inating against certain employees. ~ediately. The tex~ of Mr. Anand's grievance states as foll~s:' Stat~ent of Grievance I grieve that the empl0y~r did not give me proper consideration' for the P,A.4~Compe%,ition No.:,RE234-89,; contra~ to the Collective Agre~ent. 8ettl~en% Desired ~at I be given the above position with full retroactivity for sala~ and benefits.. ;- ,~ .. - The Board heard evidence from Mr..-Anand and Mr,.j~,Stephen. In addition,' the parties filed documentary evidence,with~,.~,' the Board. There was no real dispute with respect to%theb relevant facts.~ We will first address the facts .relevant to the issue of the timeliness of Mr'. Anand,'_s grievance. Ld 3 Mr. Anand was notified that his application for the position was unsuccessful in a letter dated November 16, 1989 from Mr. S. Stephen, Regional Assessment Commissioner. While Mr. Anand was uncertain whether or not he received the letter on November 16, 1989 it is apparent that he did so as he was aware of the refusal when he wrote a letter to Mr. W. J. Lettner, Assistant Deputy Minister, on November · 16, 1989. In fact, it appears that Mr-. Anand must have been advised informally that he was not a successful applicant for ~his position as he refers' to becoming aware of this matter on November 15, 1989 in"his November 16, 1989 letter. In the November 16, 1989 ..letter, Mr. Anand; asks Mr. Lettner to review the decision denying him the promotion. Mr. Anand sent a copy of this letter to Mr. Stephen. Mr. Lettner replied to Mr. Anand by letter dated December 22, 1989, advising him that he was satisfied'that the competition had been conducted appropriately. Mr. Anand testified that he was away on vacation and received this letter on or about January 10, I990. Mr. Anand submitted a grievance dated January 18, 1991, to his supervisor, Mr. S. Mauntah. A stage one meeting was held on January 22, 1990. No objection to the timeliness of the grievance was raised at this meeting. Mr. Mantauh replied by letter dated January 26, 1990. The text of Mr. 4 Mauntah's stage one reply is one ·sentence' which states: "Upon further review and consideration of your Stage :1 .- '- grievance dated January 18, 1990, your .grievance is h~r. eby· denied". By letter dated February 9, 1990, the grievance was referred to stage two by E. MacLean, a Union staff representative. The referral to Stage two'was acknowledged by Ms. L. Marston, Personnel .Administrator, in. a 1-etter~ :~ dated March 20, 1990 which also confirmed arrangements~,for.{.~-..~ the Stage two.meeting on March.. 27, 1990. The parties.had agreed t° extend i~he.%imeiil~mits fo~ ~-the.-stage ~two~.~e_e~ing because of scheduling· difficulties and this..'agreement.~was confi~ed in writing in a letter dated March 8,,~.1990, :~from ~. Marston to. Ms.q.-MacLean~ ..~The..Stage ~two2' mee%ing(;~was{~h 'on March 27, 1990, as scheduled. .T~ere was no 'reference to the grievance being un{~eiy~/~thestage,'"' two~me~%%ng'"~ ':~' "~' '~.~ By letter dated April ~1.7, 19~. Mr. RusSell denied~,.th%n~-.. ~3 ~ ~ grievance and in ,that letter made reference to t.he~-.fact that it was untimely. The·relevant portion· of this;.~let~er states as f011~s:.. ~?.7¥j~ .~'-.~ I hav~ been assured that your experience and: qualifications were fully considered by theA~ ] ~. panel. Further, .in comparison to the successful.~ candidates, I ~ info,ed that they were found t'o be superior to yourself in their ability and qualifications to perfo~ the duties of the .posted ~sition. Accordingly, as.there has.been no violation of the collective agre~ent,' your grievance is denied... Additionaly, as your grievance was .not .filed:'in accordance with the mandato~ t~e. li~ts~ontained in Art.~27 of the Collective Agre~ent-~your grievance 5 is considered to be inarbitrable. The grievance was referred to arbitration by letter dated April 24, 199o. This grievance was consolidated for hearing with the grievance of Mr. Fung'on agreement of counsel. The relevant provisions of the Collective Agreement are the following: 27.1 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 thisAgreemen~,.~ including any question as to whether a matter ~. is arbitrable. 27.2.1 An employee who believe~ he has a complaint or difference shall first discuss the complaint or difference with his supervisor within twenty (20) days of first becoming aware of the complaint or difference, i 27.2.2 If any complaint or difference is not' satisfactorily settled by the supervisor within seven (7) days of the discussion it may be processed within an additional ten (10) days in the following manners STAGE ONE 27.3.1 The employee may file a grievance in writing with his supervisor. The supervisor shall give the grievor his decision in writing within seven (7) days of the submission of the grievance. STAGE TWO 27.3.2 If the grievance is not resolved under Stage One, the employee may submit the grievance to the Deputy Minister or his designee within seven,(7) days of the date that he received the decision under Stage One. IN the event that no decision in writing is received in accordance with the specified time limits in Stage One, the grievor may submit the grievance to the Deputy Minister ., or his designee within seven (7) days of the date that the. supervisor was required to give decision in writing in accordance with Stage One. 27.3.3 The Deputy Minister or his designee shall 'h°ld a meeting with the. employee within fifteen (15) days of the specified time limit for receiving the decision ..... · .. 27.13 Where a grievance is not processed within~ time allowed or has not been processed by the employee or--the: Union Within the time~ pr. es~ri~e~: it shall be de~ed to have been withdrawn. 27.14 In this'Article'j'days shall~include ali'-days ..... ~ ...... exclusive of Saturdays, Sundays. and .d~_%gna~9~: 27.15 The t~e li~ts "c6ntained in this~ Article my'be ~.~ e~ended:zb~agre~gn%.of~ the ~par=ies., ~n 27 16 The Grievance Settl~ent Board. shall, have.~no jurisdiction to alter, change, ~end or enlarge any..provi si9. of .~h~ qo l!ec~'ive. ~g~e~ U'f'~.9 b It was co~n 'ground' ~hat the provisio'ns of Collective~ Agre~ent cont~plate that the outside l~itation for the fi g of a written grievance from the t~e the grievance arises is thirty-seven days. COnsidering the' exclusion of Saturdays, SundaYs and holidays from ~.the calculation as prescribe~ by Article' 27.14 of the Collective Agre~ent ~t was forty-~wo ~aY~'' ;-- - .' , , ~' from ~he t~e Mr. Anan~ was focally advised that his apglica~ion baa be~n unsuccessful ~o the t~e he filed ' '~ grievance. Accordingly, the grievance was five ~ays out · · - ' ': , t~e. I% was also co~n '~round'an~, indeed,' well 7 established in the jurisprudence of the Grievance Settlement Board, that the time limits under this Collective Agreement are mandatory. However, it was Mr. Anand's position that the Employer had waived its right to object to the grievance on the basis of timeliness. In support of his position Mr. Anand referred to a number of arbitration awards from the private sector as~ well as two decisions of the Grievance Settlement Board: Ministry of Correctional Services & OPSEU (Anderson) 1483/84 (Brent) and Ministry of Consumer and Corporate Relations & OPSEU (Tharakan) 1978/88 (Kirkwood). The Anderson decision, a decision of this'BOard pursuant to the same provisions of the Collective Agreement relevant to this case, dealt-with a situation where'd grievance was '~ forwarded to stage two of the grievance'_procedure outside the prescribed~time limits. The employer referred to the fact that the grievance was untimely but went on to address the merits of the grievance. Notwithstanding the provisions of Articles 27.13, 27.15 and 27.16 of the Collective Agreement, the Board found that a grievance that has not been processed in a timely manner is not deemed to be withdrawn if it is established that reliance on these provisions has been waived. At p. 5 of this decision the Board refers to the following summary of the arbitral jurisprudence at p. 210 of Collective Agreement Arbitration 8 in Canada (Palmer): Like estoppel, "waiver is a .legal barrier to the .~ ~ exercise of the rights in a particular case, ~ erected by-.the conduct of [sic]__ words of the .,. .. :,. parties". Conduct which has been held to amount to a waiver inc.ludes: allowing a grievance .to. go through the grievance procedure; failure to object at the first opportunity in the grievance procedure; ·.. and an attempt to settle the grievance. Waiver can als°. ~ by' verbal ,agreement.. The~ right to object at_a later_~ stage can be' retained by a statement to that effect at the first, opportunity or~ by a timely objection,~ even.~: .~:~ though it was ,not raised, again until the hearing. Generally, waiver arises therefore where ~t is clearly indicated.~that one of.the parties does invoke the procedural provisions of the collective In tha~ case' the Bo d found that the Employer had ~ledge that the grievance had not been processed ~n accordance with the t~e limit's p~escribed by the Collective Agre~ent as it adverted to th~'t~e res~nding to the grievance. Because of the fact that the. ~ployer ~roceeded..to c'onside~ the grievance on.~ its_ meri}~qx the Board cOncluded that it had waived.its~obJec}ion._}o~ t~eliness. ' In reaching this conclusion the Board noted-,at,r. p. 8 of its decision-that: -' ~ "... even though the onus is on the Union to es%ablish the ~iver, the onus is on .the Employer: to show that.it made.~, ~ its objection in a t~ely fashion". ... In the Tharakan decision, supra, the grievance was. ~ fo~arded to the Grievance settl~ent Board for a ~eari~g outside of the time limits prescribed for 9 the matter to arbitration. The Union referred the grievance to arbitration requesting that it be consolidated with another grievance. In a letter to the Grievance Settlement Board, which was provide,~, to the Union, the Employer objected to a consolidation of the grievances and also Objected to the grievance on the grounds tha~ it was untimely. The Union requested that the grievance be scheduled for a hearing. The grievance was dealt with at mediation and although the Employer raised the issue timeliness with the mediator in the absence of the Union the Union was not advised that the Employer was pursuing this objection until the day before the hearing. The Board Concluded that the timeliness objection had been waived. · Its reasons for so doing are ~et out at pp. 4 and 5 as follows ~ In the case before this Board, the defect was apparent and the employer conveyed its objection to the Registrar at its earliest opportunity, but it did not convey its objection to the union directly until the date before the hearing. By not saying or communicating any objection to the union after the employer' became aware that the grie%ance was being processed for a hearing and then by participating in the mediation process again without communicating its objections to the union, the employer is acting in such a manner as to take the hex= step and lead the union to believe that there was no objection to the arbitrability of this grievance. If the employer had intended to resolve the merits of this case, without waiving its rights to raise its objection, the objection should have been raised Prior to the media%ion and an agreement reached between the parties that the mediation was occurring "without prejudice" to the Ministry raising the time limit objection at the hearing. However, therefore as the employer failed to notify the' Union as soon as the. employer~ found out that grievance was being processed and by participating the mediation again without making an objection;-the Board finds that the employer waived the objection the time limits which ~would 'otherwise have been available to successfully argue that the Board had no jurisdiction. Mr. M~e~ argued that these'decisions, as-wei1 as other cases from the~private Sector referred~to~by:'Mr;~, ~and, can be distinguished, from the facts of. this~ Sase., In particular, ~Mr% McKe~n emph~sized.the..referenCeS~.in~,th~ ~derson and ~arakan' decisions-, to~ the Employe~-~giving3.d~ notice of the-fact th'at it,~,was relying~on.,its-.t~line~s, at~,S~l,f~.a or just prio=, to the arbitration, hearing. ~It.-:was s~tted that there.~was no 'detr~ental'~reliance.f.in~this~.~v 'instance. .~ ~ ~ ~ -.. - ...... .~ile Mr~ McKe~' is"correct~in'~inting out evidence does not establish,, detr~entai, reliance~ on' part of the Union or:.the~gri~vor it,is clea~.fr~%'h~ authorities referred fo .that it is not neces~a~7, for..~lc~ detrimental reliance'to be established in Order for~the. doctrine of waiver to apply. Mr McKe~ also .emphasized.~c that' factual matters and legal argents,. Such-as~:. t~eliness 'objections, are fleshed out grievance procedure. ~ile we agree in general with pro~sition, the t~eliness.of Mr. Anand's grievance was~- clear from the info~ation available to the EmplOyeroat~lthe=.?qo 11 time the grievance was filed. Whether or not the timeliness of the grievance was adverted to, a party to the grievance procedure must be presumed to be aware of the facts relating to the timeliness of the 'grievance. As stated in Town of Pembroke, 18 L.A.C. 125 (Johnston), a party 'to a collective agreement in these circumstances is "fixed with the knowledge of the timeliness of the grievance".. While the facts of this case are not identical to the facts of the Anderson and Tharakan cases, it is our.. view that the principle expressed in these cases tis applicable.-. The principle that these cases establish is that an objection based on non-c~mpliance with time limits~. is' waived when there has been a failure to raise the objection in a timely manner and the taking of a fresh step prior to raising the objection. In the ~Circumstances of this case, where the grievance was discussed at two meetings on its merits, the grievance was denied in writing on its merits following the stage one meeting and the timeliness objection was not raised until the written reply subsequent to the stage two meeting, it .is clear that a timely objection to the failure to comply with the time limits of the Collective Agreement was not made and that a fresh step was taken prior to the timeliness objection being raised. The fact that the objection was made prior to the hearing or the eve of the hearing does not affect the operation of the waiver. Once a timeliness objection 12 has been waived it 'cannot be revived by notice. For these, reasons, .it is our conclusion that the EmplOYer's.. objections'? to the arbitrability of Mr. Anand's grievance must fail. The next iss~ue, is ~hether '~he Union is ~t.temPting< to~.TM eXPand the-grievances in such a 'manner as to fundamentallY' change the. nature of the original grie~vances. A 'related-~e~ issue is whether the "~an rights" issue ra~Sed~by Union should~ not be dealt with by. this Board~ as''' it'~' is%~.{~ ~tter more appropriately d~alt~ with iM~anothe~ ~ese~issues ~y'be Understood in' the~':conte~ '~ '" of, the ~sitions'of .=he partiesras~7outlined- in~,theifSmS~ , ~ ' uo~res~ndence. By letter dated Dec~be~ 27~ 1990~'Mr%~· ~and wrote to>Mr~:McKe~ andtadvised'.h~ ~hat~,th'e intended to lead e~ert~evid~nce at the ._he~ing& {o establish' that:~ "oral'. intervi~s are inherehtl~abiased'~m against persons whose first language is not English, and~nmu.{~cq~ whose customs and mannerisms ~y be in some ways unconventional." Mr. 'Anand's letter went On to state:?, will be our ~sition: that the Minist~ of Revenue ~properly placed undue emphasis on'the 0ral i'nte~vi~s~,'~3 conducted in the job competition..." . Mr.' McKe~n~''''' .' res~nded, to this letter bx letter dated Janua~ 2;' advising Mrs' Anand inter alia that he considered-this"to an enlargement of the scope 6f 'the grievance and that~he~}°3J~.~. 13 objected to such an enlargement. Mr. Anand took issue with this position in a letter to Mr. McKeown dated January 7, 1991. Mr. Anand stated that the position of the Union in regard ~o these two grievances is that th~e had been an undue reliance on oral interviews in this competition which constituted a critical defect in the selection process. Further alleged procedural flaws are set OUt in a letter date~ J~nuary 8, 1990 from Mr~ Anand to Mr. McKeown. The remedy :hat is being sought by the Union is an order directing that the competition be re-run with appropriate safeguards. Mr. McKeown stated that prior to the. December · 27, 1990 correspondence from Mr· Anand it was his understanding that the issue raised by the grievances was Simply whether the skills and qualifications of the grievors are relatively equal to those of the successful applicants. While Mr.r Fung's grievance specifically alleges "discriminatory actions" it was common'ground that this particular reference was to the interview process which took place subsequent to the communication to the applicants of the results of the competition. It was also common ground that Mr. Anand had advised Mr. McKeown that the Union was not pursuing this particular allegation. There was bri~k vi~a voce evidence called by the parties with respe6t to .the n~ture of 'the'discussions ~that took place-during the grievance Procedure. Mr. Anand ..... testified that "at 'the' stage one grievance meeting on januarY 22, 1990, Mr;~ B'i Valentin'e, Union steward',' stated: "Because of cultural differences and be'lng a' member of'a minority, it' is~ hard'to s!ell the skills"' 'This statement~..~.'. was recorded in Mr. Anand's notes of' the meeting.. · Thi~ ..... evidence was~ unchallenged...Mr.~. Stephen:'testified'~ allegation of discrimination hawsed' on cultur~al" or- background Was raised at~ the- sec0nd' stage' grievance?;~o~:~'~ meeting. ,~'Also 'of~ relevances'to ~this'*issue ~'is~ a* dated March 20, 1990 fr0m'Mr~ ~" Mancinf, the ~. Russell, i~n conffeCtion' with. the Anand grieva~ce%~'The~.s relevant ~tion. 6f {his .memorand~' states~ ..... ~...' '~3v'{~ It has. been brought to my attention that an ~' %-~. ~ployee of the Migist~, Mr. Ru~nder Anand, is alleging that h~ has been: discriminated against on numerous occasions when competing for career promotions within the Minist~. ' : -:~ :~ ~-~ ? ~e final document~ of relevance is Mr. Russell's second -~ stage reply of April 17, 1990 which states: ' I ~ info,ed that your complaint concerns your unsuccessful application to competition RE-243/89. Specifically, I understand your co~laint tO be - that your experience and qualifications for th9. . ~sition were not given proper considerati~ ~ere was no evidence adduced with respect to what matters were discussed in the grievance Pr~edure in connecti6W: with the Fung grievance. The decisions referred to us dealing with the appropriate scope of the hearing before an arbitration board address the appropriate balance between two competing principles. The first principle is that it is the real dispute between the parties that an arbitration board should resolve and that it should do so, without undue technicality with respect to the form and nature of the grievance. The second principle is that it is inappropriate to allow a party to arbitrate a matter that is fundamentally different from. the matter that was- processed through the grievance procedure in view of the fact that the arbitration pro~ess is the las.t stage, of the grievance procedure and that the grievance procedure exits for the articulation and resolution of grievances. The test has been articulated in Gwin and Liquor Control Board of Ontario 27/83 (Draper) as whether the matter would~ "retain the essential identity of the o~iginal issues.. [or whether there is] a request to entertain a grievance so fundamentally altered as to be tantamount to a separate grievance raising separate issues." As is generally the case with such.grievances, both Mr. Fung's and Mr. Anand's grievances are brief. While these grievances do not make specific allegations with respect to discrimination arising from reliance on oral 16 interviews, as the Board's .jurisprudence on competition. ."-' ~ cases attests, the allegation that an individual's and qual-ifiCations have-not been fairly assessed becauB.e~.ofL~,~ an inappropriate reliance on oral'interviews is not an'~,. ~ unusual kind of .allegation to arise in such.g~rievances'.._~.~.- Indeed, allegations of Procedural flaws commonly 'arise% i-n~, grievances phrased in.language -similar to the .l~anguage. the grievances before us'. '~ Un'like .the cird~mstances., in- the decisions~ ~eferred.to. Us where the~Board .f.ound ~th'atl_thei grievance, had. been eXpanded;~, we ca_nnot3~qonclude>.that3:t, his3~~ allegation"is~ one .tha.~ _c.0uid.: ngt ~e]-~ontempl'a_t..e.d~ bY.~._t~h.e~.ii~.~,~' language..oft.the' grievance and. that~'what-: is.-brought- ~o.rwar~dz to be. 1 itigated, at. arbitration. 'i s-~a~. ~.fundame.n_tal'iyd ~rievance'~. While it was agreed that the specific~.,~ ~. -~..~' allegation.!gf~,,discrimination in Mr. Fung.,.s~ grievanC.el~;~ · related to the interview process?that, took place subsequent~.3~-~ to the hearing there, was no. evidence-adduced with r'esPeqt~.~ to the nature of the discussions that. took. 'place. grievance procedure with respect to this grievance: ~It~ is clear from the evidence adduded before the Board in , connection with the Anand grievance that at the first stage meeting 'the Union' steward made the specific allegation that cultural differences placed persons in a minority group.at a disadvantage in "selling their skills". While the allegation is more concisely articulated in Mr. Anand-'s.. letter of December 27, 1990 to Mr. McKeown, the allegation.; 17 was expressed in layperson's terms at the stage one grievance meeting. From the March 20, 1989 memorandum from Mr. Mancini it is apparent that the Employer was aware that an allegation of discrimination was being made by Mr. Anand. Clearly, the Employer was made aware that there was an allegation of a disadvantage with respe6t to the presentation of skills and qualifications because of cultural differences arising from membership in a minority group in the context of this competition. While it is clear from..the-evidence that this particular-allegation was not specifically addressed at the second stage meeting it is our view that it would be inappropriate to require' that all. allegati6ns-be' raised at all levels of the gr.ievance procedure in order 'for such allegations tO be raised at the hearing. Where the allegation is one that can fall within- the general language of the grievance, where it' was raised at the stage one meeting, where there was no specific undertaking made subsequently in the grievance procedure that the allegation was not being pursued and where counsel for the Union advi'sed counsel for the Employer that this matter was being pursued in advance of the hearing we cannot conclude that the Union should be precluded from raising this matter at the hearing. The related issue is whether this Board should decline to consider this allegation on the basis that it is an 18 issue that it is an allegati~on of discrimination that is appropriately dealt with pursuant to the Human Right~ Code. It was submitted'on 'behalf 'of the Employer. that it is:~_this body which has the expertis, e.t6 deal With. such a ~t~er/'and ~that it would be inappropriate for the Grievance ~e Grievance Sentiment Board has ha~ the to consider the.app=0Priate .approach~.t0 be t~en:.where all~ations of % discr~n~tio~. 'co"tra~ ~- to the- H~h' ~ig~s~ ~de are raised ~ before it'in ~ '~ber"of'-cases~-~ile?thf Board ini~iallY~too~~-a more "expahsive ~Vi~-of th~'?.~u -' approPriate~a~proach i~'Minist~, of Correctional'. Services ~'~ the Board's subs~uent jurisprudence has ~en a more restrictive approach.. The.approach is s~rized in Minist~ of Trans~rtation and Co~unications & OPSEU (Beitner) (Roberts) 1841/87 at p. 8 as foll~s: Generally, where a statute such as the Human Rights Code provides a comprehensive sch~e for the investi gation' and adjudication of complaints, the aggrieved party is required to resort to that scheme' and cannot enforce p~ely statu.to~ rights through labour arbitration'. So, for ex~ple, where a statute p'lace'~ a positive obligation on one pargy to a collective agre~ent and the collective agre~ent is silent u~n the matter, an arbitrator will decline jurisdiction in order to avoid' the spectre' of re-writing a collective agre~ent which served in the first place as the basis for his jurisdiction. ~so relevant to the facts of th~s case are the ~ard's further co~ents at' p~ 9: ? ~' : : So insistent have arbitrators been that positive obligations under a comprehensive statutory scheme not be enforced at arbitration that they have refused to permit the parties to "cloak" a naked submission under a statute as a violation of a general provision of a collective agreement, such as a management rights clause, or some broad, general practice. For example, in Re Aubin & Ministry of Correctional Services 1044/87 (Gandz), the Board rejected an attempt to use the overtime provisions of articles 13.1 to 13.3 of the collective agreement -- which merely set the overtime rate and specify when overtime shall be paid -- to cloak a submission that the Ministry discriminated against handicapped people 'in violation of Section 4 of the Ontario Human Rights Code when it followed a practice of" removing an 'employee from the top of the overtime list when he was placed on a long-term disability and putting his name back on the bottom of the list when he returned. After noting that the collective agreement was silent on the question of allocation of overtime, the Board said, "It may be that, indeed, this practice.' contravenes the Human Rights Code. But the job of this Board is not to rule on violations of the Human-.Rights Code. The Code has its own enforcement mechanisms and · these should be used to resolve complaints arising under it" Id. at p.4 The Board goes on, in that decision, to outline the circumstances in which arbitration boards do embark on a consideration of the effect of a statute. Can it be' said in the circumstances 0f this case that the Union is asserting a "naked" or a "cloaked" statutory claim of discrimination? It is our view that it cannot. Article 4.3 of the Collective Agreement .irequires the Employer to "give primary consideration "to qualifications .. and' ability to perform the required duties". In spite of the fact that there is no provision prohibiting discrimination in the Collective Agreement under which 20 these grievances arise, the allegation t~at-the Employer has failed to'give' the requisite consideration ~6 the ~- qualifications and abil'itfes of the grievors 'becaUse'undue reliance on an 'oral interview procesS'that di~Criminat~es against the grievors because of-~their cultural and/o~r . racial background deals with a substantive 'obligation umder the Collective Agre~ent.~ Unlike the city--stances ~n~ cases relied °n~by t~ Employer, the ~Sition of the Uni°~ in this case~'is not c~ntingen~ on a'findi~g-of a viola~ioh of the H~an Rights code.~ The all~ati~n~made ' ~y also.give rise' to~ complaint under the H~an' Rights n % ~o Code. However;.'.'as.~this Board 'has. n6ted ih Mi~i~t~of ~ Co~nity and; Social '~Services- a~4~:OPS~.?. (Union~- grievanceS' ' ) 9~..~' 1190/89 (S~ar~), =h~- fact that.there is concurrent?~ ~{~ jurisdiction with respectrto a ~tter, (in' that..case~. whether an emplOYer, ~e reaSonable.provision~tfor.~'.%he3i health and safety of ~ployees) arising both under a statute and under a collective agre~ent, this fact does not deprive the' Board of jurisdic{ion. We agree- McKe~ that t~is decision is distinguishable from the. case at hand as the decision dealt with s~lar Subst~ntive.~ ~ provisions under'a' statute"an~ a c°iiective agre~ent..' ~ However, if an allegation that is the subject of .a~..... '.~. ~. statuto~ provision also relates directly to a substantiv~ provision' of a collective agre~ent, it is our vi~ t~t''' this Board would be de~iining'to exercise its jurisdiction~.~.a~ . 21 · if it refused to consider the alleged violation of the collective agreement merely because the~ matter is also the subject of a statutory provision. The logical implication of Mr. McKeown's argument is that if any ground of discrimination prohibited by the Human Rights Code is raised in connection with an alleged violation of a substantive provision of the collective agreement the matter should not be dealt with by the Grievance Settlement Board. For example, if in a grievance alleging discharge without just cause an employee alleged that the reason in whole or in part for his discharge was his sexual orientation, should-the Board refuse to..deal, with that all'egation merely be.cause. such matter is a prohibite.d ground· of discrimination under the Human Rights Code? Clearly, the answer must be no. The Board would be declining its jurisdiction if it were to take such an approach · Mr. Anand suggested parenthetically :that this Board's jurisprudence concerning an arbitration board's role with respect to the interpretation of the Human Rights Code may be in question in light of the more expansive approach taken in Rothmans, Benson & Hed_ges Inc. (1990) 10 L.A.C. (4th) 8 (Brown) which is based on an analysis of the relevant judicial authorities. It is not necessary for us to decide this issue. Even on what may .ibe characterized as the restrictive jurisprudence of this Board,* we are convinced that 'the effect of this jurisprudence is Board should ~ot.c0nsider the particular allegation raised in this case. As' Mr. McKeown suggested, the evidence may**. be of a complex nature. However, it 'is certainly unusual for this' Board to be called'u~n-tO assess do,lextel%,' evidence. Wi'th respect to Mr. McKe~n'~s s~ssion this ~tter should properly have been the subject of a ~li~ grievance' w'e note that it 'is co~n for ~is~ues'.~of~-.(,~-~ grievancesze*~he.' general ,significance 'of an/issue,_doesl, not~a compel the ~onclusioni*that~the:~tter; is .*'not:~ properl~.~d' the part of Mr. ~and .to*provide Mr. McKe~:wi%h of the expert testimony, to be adduced by the Union. M~. McKe~ referred to rule. 53~O3.'*of the Rule~ of Proeedure which *obliges *a party who inten*ds to expert witness at ~rial'to provide a re~rt'se~'ting s~stance..o~ that person's evidence no' less than ten:days prior to the c6~encement of the %riall Mr.. M~eo~ referred ~o Tomen v. O.T~F. (No.2) 11 :~.H.RiR. 13 (Ba~)',. prelimina~ decisi:0n of a Board of Inqui~ under the. H~n~ ~ghts Code which dealt with a number of procedural ~tters prior to the co~encement of the, hearing of .%he merits in 23 case of some complexity in which there were a number of parties. In that decision it was ruled that in the event that any party wished to adduce expert evidence, a summary of that testimony along with the identity of the expert and that person's qualifications should be provided to the other'parties two months prior to the commencement of the next scheduled hearing date. It was Mr. Anand's submission that this Board should be reluctant to adopt and apply the procedural rules of. the court system to arbitration proceedin'gs, particularly on a piecemeal basis. Mr~ Anand noted that he had provided Mr. McKeown with notice'of his intention to!.adduce expert.. evidence and the general nature of this evidence as a courtesy in his letter of December 27, 1990 which was . ' .... thirteen days in advance of the hearing date. This matter became largely a theoretical issue however, as the dates that were scheduled for the hearing of this matter were taken up by the preliminary issues. As well, Mr. Anand stated that he had no objection %o providing Mr. McKeown with an expanded summary of the.expert evidence that he intended to adduce. He stated further stated that he made that undertaking on the assumption that such disclosure would be reciprocated in the event that Mr. McKeown intended to adduce expert evidence as well. We 24 have assumed that the expanded summary Mr. Anand undertook "to provide includes the identity and qualifications of the witnesses Mr. Anand intends to call and that this. information will be provided forthwith. In light of Mr. Anand's undertaking, it is our view that the Board'should make no order with respect to this matter. We think that in ~he particular circumstances of this case this matter is appropriately left with counsel. In the unlikely event that there is still an.outstanding issue with respect to this matter when ~his hearing reconvenes the matter can be. addressed at that time. The hearing,is to reconvene on the dates previously echeduled in accordance with these rulings. Dated at Toronto, this l'6=~ay of April, 1991 S. L. Stewart - Vice-Chairperson J. Carruthers - Member D. Mont~TMOse - Member