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HomeMy WebLinkAbout1992-0905A.McKinnon.93-07-14 -j:;=.~-~----~-._'-----_._--"G~---_.-._-- ,--, --,. - ,._.(''-.'':-._----~--~---~-- ONTARIO" EMPLOYES DE LA COURONNE CROWN EMPLOYE~S DE L 'ONTARIO \ 1111 GRIEVANCE COMMISSION DE ~ ...- . SETTLEMENT REGLEMENT . . BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO, M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS'OUEST BUREAU 2100, TORONTO (ONTARIO) M5G1Z8 FACSIMILE: ITELECOPIE (416) 326-1396 , i 905A/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN - OPSEU (McKinnon) Grievor - and - The Crown in Right of Ontario - (Ministry of Correctional Services) Employer BEFORE: 0 Gray Vice-Chairperson E Seymour Member J Miles Member FOR THE K Whitaker \ UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE J Ravenscroft EMPLOYER Grievance Officer Ministry of Correctional services HEARING June 28, 1993 ) I I ) 1 , -----:----~...'----~. .--.-,.--.-- .----.--- '('m(;, --- .-..,.-------.,-..-.-..--'-.--~---'-'T-(.--.,----.--~----~---,-,~---._-..---- I I AWARD r ) This award deals with two preliminary ib'sues raised by the employer- 1) whether, as the employer argues, we should adjourn our hearing in this matter until the completion of certain proceedings before a Board of Inquiry I appointed under the Ontario Human Rights Code; and, 2) if we proceed with a hearing, whether we should receive into evidence I , certain documents which the union proposes to tender The grievor isa corrections officer employed by the Ministry of Correctional Services. He filed the grievance now before us on March 11, 1992 In it, he alleges that the Ministry's management violated' Article A of the parties' collective agreement. - Article A provides that A.I.l There shall be no discriminat~on practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, 01" handicap, as ; def"1ned in section 10(1) of the Ontario Human Rights Code (OHRC); Although the grievance also mentions article 18 1, counsel for the union has advised us that it does not rely on that provision. The grievance identifies by name the members of management whose a,cts or omissions are said to constitute a violation of article A, but does not identify the acts or omissions themselves. It is common ground, however, that throughout the grievance procedure the focus of this grievance has been on an incident about which the grievor complained to the DepJty Minister ina letter dated January 23, 1992 The incident was the appearance on the employer's computer system of a public message of unknown origin referring to the grievor and his wife in a way which the grievor says amounts to hate literature The union's position on behalf of the grievor is that the employer was aware as early as the spring of 1990 that its computer'message board ( _. .--,-.---.--,--.... ._-_._,._~-------T---..--_.._._--_._.._- ~-'- -, (--- .--- ----- ..__._--~-~-_.._-- "- - 2 - was being used to disseminate racist, sexist and homophobic messages. The union alleges that the employer violated Article A by \ ) 1) failing to take steps to prevent misuse of its computer message system prior to January 1992; 2) failing to take steps to prevent future misuse of its computer message system after the grievor became the victim of such misuse and complained about it, and, 3) responding to the grievor's complaint about the message in a way which was designed to send_the message that this was the sort of communication the grievor should have to endure as a result of his having earlier filed complaints about discrimination with the Human Rights Commission. - The Adjournment Request Thegrievor filed a complaint with the Ontario Human Rights Commission ("the Commission") in November 1988, alleging discriminatory conduct by the employer and others reason of his ancestry, race and ethnic origin. In March 1989 he complained to the Commission that he had suffered reprisal as a result of his first complaint. He filed a complaint about Jurther alleged reprisal in September 1990 Some time before \ October 1992, one of the Commission's Human Rights officers issued a report which, the union says, concerns only the subject matter of the November 1988,complaint. In the period between October 1992 and April 1993, a Board of Inquiry was appointed and 14 hearing dates between July 20 and October 15, 1993 were set. Counsel for the employer initially told us that the Board of Inquiry had been constituted to deal with all three of the complaints which the grievor had filed. She \ said she believed that the Board of Inquiry would also deal with the incident of \ -- --.-.----------.----.. --..---.'- (-~---~-.----... .-.---~--..--.---.- ----(~:;;-.-.--c- --- - .------- -..------.,- - 3 - ~ ,January 1992 She based this belief on the fact that the grievor copied his letter to the Deputy Minister of January 23, 1992 to (among others) the Human Rights officer assigned to deal with the grievors' compla;ints to the Commission and on the proposition that the Commission is bound to investigate any allegation ofdiscrimina- tion which comes to its attention, whether the victim. asks it to do so or not. She argued that the issue before the Board of Inquiry will be the same as .the one raised by this grievance - namely, whether the g'rievor has suffered discrimination. She said she understood that the union intended to introduce in this proceeding evidence with respect to the grievor's allegation of discrimination back to 1988 She argued that there is nothing the gtievor can get in this proceeding that he could not get in proceedings before the Board of Inquiry, and that the remedial jurisdiction of a Board of Inquiry is broader than that of this Board. She submitted that we should avoid duplication of proceedings and possible prejudice to the employer by adjourning this grievance until the Board of Inquiry has disposed of the matters before it, and that - there would be no prejudice to the grievor if we did so Counsel for the union disputed the proposition that the Board of Inquiry had been constituted to deal with anything other than the subject matter of the complaint that the grievor filed with the Commission in November 1988 He also stated that the grievor had not asked the Commission to investigate the incident ,which is the subject of this grievance. He acknowledged that the ,Board of Inquiry might chose to enlarge its inquiry beyond the, November 1988 complaint, but said it had not yet done so In any event, he said, the grievor prefers to have the subject matter of this grievance dealt with by the Grievance Settlement Board ("GSB") under Article A rather than by a Board of Inquiry under the Ontario Human Rights Code. The union also prefers that the matter be dealt with in these proceedings in which it is a party as of right, and which would be concerned with the interpretation and application of the collective agreement to which it is a party If the GSB has a more restricted remedial jurisdiction than a Board of Inquiry, which they do not admit, the union and the grievor accept that as a consequence of their preference that the matter be dealt with by the GSB. -~ .--.----.-.--.--..-'--..---,~--.-- -.--c,-.----.--- -.-- -- ._- ~. -_._--c:~-'-----------_.._----'--- - 4- Counsel for the union denied that it would be seeking to prove in these proceedings any allegation of misconduct which has been the subject of any of the grievor's three complaints to the C~mlInission.)He said the union wished to introduce copies of the three complaints and of the officer's report into evidence, not as evidence of the truth of their contents but only to show what allegations had been made by the grievor and the Commission prior to the January 1992 incident. The nature of the allegations has relev~rice apart from their truth, he said, because the mere existence of them forms part of the context against which the conduct of management in relation to the January 1992 incident must be judged. He said that the union would make no attempt to prove the truth of those allegations in this prQceeding Apart from these four documents, which would be introduced for the limited purpose described, counsel for the union said that the Qnly evidence which 'it would introduce concerning events prior to January 1992 would be evidence to prove its allegation that the employer was aware as early as the spring of 1990 that its computer message system was being used - to disseminate racist, sexist and homophobic messages. There being a dispute about her initial contention about the present mandate of the Board of Inquiry, we invited counsel for the employer to tender evidence with respect to the scope of the inquiry which that Board of it had been appointed to perform. She had none to offer' no witnesses, no documents. At our request that he provide us with the information he had about the scope of the Board of Inquiry hearing, counsel for the union provided copies of correspon- dence sent to the grievor and to the counsel acting for him in the proceedings before the Board of Inquiry The first in time, was a letter from the Commission received by the grievor in October 1992', indicating that the Minister of Citizenship had been asked to appoint a Board of Inquiry The caption in that letter refers to the file number assigned by the Commission to the complaint of November 1988, but not to the file numbers which, the union says, the Commission has assigned to the two subsequent complaints. The next in time was a letter from the then Registrar of the Boards of Inquiry, noting that "the hearing" would "reconvene" on the _mornings of ~ -- . -. - -~- -_._..,.._-~..,~-_.._-_.'------_..,-'_...".~_..c....._--'-'_.-".-- .-..,.----.-.., ._- ,- .-.. --("'''---'--- ,-- ---~..-~-~-_.,----~-~._----- , \ , - 5 - July 20 and 21, 1993 and ten subsequent full days beginning August 30 and ending October 15, 1993 The caption on that letter begins with the words "Hearing of the co~plaint, dated November 29, 1988, filed by Michael McKinnon pursuant to section 32 of the Human Rights Code " and makes no reference to any other complaint or subject matter The third is a letter dated May 26, 1993 from Commission counsel to Mr McKinnon's counsel discussing the hearing schedule, which again refers only to the file number assigned to the November 1988 complaint. Counsel for the employer conceded that the letters tendered by counsel for the union were sent by the apparent authors on or about the dates indicated on them and received by the addressees in due course. She further conceded that the grievor has done nothing, beyond copying the Human Rights officer with his letter of January 23, 1992 to the Deputy Minister, to cause the allegations which are the subject of this grievance to be the subject of any investigation or inquiry under the Human Rights - Code. She also conceded that if the hearings of the Board of Inquiry deal only with the allegations raised in the file captioned in the correspondence about those hearings, then those hearings will not deal with the allegations with which the union seeks to , have this board deal in these proceedings. She seized on the words "preliminary matters", which appear in brackets beside" July 20, 21" in the letter of May 26, 1993 I from Commission counseL She invited us to infer that the Board of Inquiry will be considering the scope of its inquiry on those initial hearing dates and might then decide to inquire into the subject matter of this grievance. She did not suggest, however, that the employer or any of the other respondents to that comp1aint would be asking the Board of Inquiry to do that. Counsel for the wiion noted that August 25 and 26, 1993 have been scheduled for the hearing of( this grievance on the merits, subject to the outcome of the employer's request that we adjourn until th~ Board of Inquiry co~pletes its hearings. Those dates were scheduled on the basis of the union's unchallenged estimate that the hearing of this matter would require only two days. Accordingly, if the Board of Inquiry is only dealing with preliminary matters on July 20 and 21, then it appears I ---- --_ ______'___~_m_, _~______ ___ (' __.__ __,_, ________________.__ ___ - (--;' '- - -~- - ,------ ._-------_.__._--~--~- - 6,- i that we could complete our hearing of this grievance on the merits before, the Board of Inquiry begins hearing any evidence on the matters with which it is concerned. :) During her argument, counsel for the employer referred to the award in $mgh, 240/79 (Eberts). There, the grievor complained about a demotion he suffered in consequence of his refusal on religious grounds, to shave his beard. The employer asked the Board to decline to hear the grievance on the ground that the subject matter of the grievance was more properly the subject of a complaint under the Ontario Human Rights Code. No such complaint had been filed, the employer's submission was based "on the abstra~t existence of a remedy under the Code" The board rejected the employer's submission, but noted (at,pp 10-11) that Had the grievor already submitted a complaint to the Human Rights Commission, different considerations might arise. n may be that where a complaint to the Human Rights Commission has - reached the stage where the Grievance Settlement Board could be sure that a Board of Inquiry would be hearing the cOI,llplaint, the Grievance Settlement Board would consid~r adjourning its proceedings to await the outcome of the Board of InquirY At that stage, it would be possible to ascertain wh~ther the issues before' the Board of Inquiry are the same as, or include, the issues before the Grievance Settlement Board. Because the Minister has a discretion as to whether a Board of Inquiry will be appointed at an, an adjournment of The Grievance Board proceedings at any time prior to the appointment of a Board of Inquiry might very well be premature and may cause ~ needless hiatuS, in the resolution of a problem. Counsel for the employer relies on these observations in support of its request here. It also relies on the awards in Miller, 0008/90 (Verity) and Re Pepsi-Cola Canada L!d. , '" and Umted Brewery Workers (1972) L.A.C (2d) 891 (O'Shea). In Miller, the grievor had been discharged on the basis of a criminal conviction. He grieved. An appeal from his conviction was allowed, and a new trial ordered. When the grievance first came on for hearing, that second trial was schedule d to prqceed in less than three months. The employer contended that its case depended entirely on the outcome of that second trial, and that the grievor would be reinstated if acquitted. It asked that the hearing of the grievance be adjourned until that outCOI le was known. ^' .----~- ~-'~--' --.-----.--..--- -,--,z~,--.,c--,----,_......_,-----'-'-~--'_"'" ._-~._-_---:.._-"---.-:_,_...- - 7 - In the circumstances, the Board granted the request on terms that if the grievor was I acquited he was to be reinstated with compensation. I In Re Pepsf-Cola and United Brewery Workers, supra, t,he union grieved the employer's having created and filled a new job without" posting the vacancy or negotiating a rate of pay and other terms and conditions of employment for the ) position. The employer's position was that ~hose in the new job fell outside the bargaining unit because they exercised managerial functions. The union had applied to the Ontario Labour Relation Board for a determination whether the persons in I question were employees within the meaning of the Labour Relations Act, an application which raised the question whether those in the new job exercised managerial functions. When..the,grievance finally came on for hearing, the parties had already put five days of evidence on the duties and responsibilities of the challenged position before an O.L.R.Bexaminer, and were awaiting the examiner's report (on.. which argument before the O.L.R.B. thereafter would be based). Having regard particularly to the fact that the union had, it noted, "elected to have a determination made by the O.L.R.B ", that considerable time had been spent on that application and that the outcome of the application might be dispositive of the grievance, the arbitration board granted the employer's request that the grievance be adjourned pending the O.L.R.B's decision. The circumstances in this matter differ in two ref)pects from those contemplated in the passage quoted from Singh. One difference is that the grievor has not made a complaint to the Human Rights Commission about the conduct he complained of in the grievance which has come on for arbitration by this Board. His letter of Jan'Q,ary 23, 1992 to the Deputy Minister about that conduct contains no suggestion that the Commission would be asked to do anything about it. Since the letter also refers to the complaint he had filed with the Comm~ssion, his having copied the letter to the Commission seems entirely consistent with his position that he has not asked the Commission to deal with the allegations which are the subject of this grievance. '-~-".-'-'-'-'-'---"._- ------,---..,...... -r-' ,-,... .c -----'-'-""'--------_."'-----,--~- - -----,--......-.----..---...--- . ~ - 8 " No 'doubt the Commission, having learned of them from its officer's copy of the letter of January 23, 1992, could investigate the allegations made in this grievance whether the grievor asked it to do so or not. Th~ employer has not off~red the slightest evidence that the Commission has chosen to do so in the 18 months since it learned of the allegations. It may be, and we are prepared to assume, that the Board of Inquiry now seised with the grievor's 1988 complaint could expand its proceedings to entertain a request (presumably by the Commission) that there be a reme4ial'response to the conduct alleged by the grievor in the proceeding before us. It may even be that that could be done without delaying and extending the hearing schedule already established by the Board of Inquiry But 'again, the employer ha~ not offered the slightest evidence that the Commission (or anyone else) proposes to make such a request. This illustrates the_second respect in which the circumstances in this matter differ from those contemplated in the passage quoted from Smgh. matters have not reached a stage at which this Board can be sure that a Board of Inquiry will deal with - the subject matter of the grievance before us. The Mlller and Pepsl-Cola suggest that an arbitration board has a discretion to defer its own adjudication pending the result of adjudication of a shared or related issue by another tribunal. The union acknowledges that we have such a discretion. It submits the circumstances here do not warrant exercising that discretion in the manner requested by the employer We agree. It is unnecesary for us to comment on whether the hearing of a grievance alleging breach of Article A should be deferred over the objection of the grievor and the union when the misconduct alleged in the grievance has become the subject of proceedings before a Board of Inquiry otherwise than at the grievor's instigation. The abstract possibility that pending proceedings before a Board of Inquiry may be enlarged to embrace the allegations which are the subject of this grievance is insufficient reason to adjourn our proceedings, particularly when that enlargement is not being sought by the griev.or ~--~----- .- --" ~ '{:r.-- - -.-.----.--'------'--.-{~- .--.---------...,--.----.."---.-.--.-. ~ ,ii.. " - 9 - ( The employer's request that we adjourn these proceedings pending the outcome of the proceedings before the Board of Inquiry is denied. I The Objection to Documents As we have already noted, the un,ion proposes to introduce into evidence copies J of the grievor's three complaints to the Commission and of the Human Rights officer's report on the first complaint, for the purpose only of showing what allegations had been made and were outstanding in January 1992 and not as evidence of the truth of their contents. These are the documents which the employer asks that we refuse to receive into evidence for any purpose -' Counsel for the employer says that for purposes of this grievance we do not need - to know more about the grievor's complaints to the Commission than that he filed them and that they allege discrimination in employment on the basis of race, ethnic origin and ancestry by the employer and others. She disputes the union's contention that we need to know the particulars of those allegations and of the Commission officer's reaction in order to assess the misconduct alleged in this grievance She argues that the employer owed no greater duty to the grievor than it would have owed to an employee who had riot filed those, or any, complaints with the Commission. She claims the employer would be prejudiced if we were to see the contents of the documents. It may be that once we have seen the documents in question and heard the parties' evidence and argument with respect to the conduct complained of in this grievance, we will conclude that the details of the earlier complaints and the nature of the Commission's reaction to them have no bearing on the outcome of the grievance. Having neither seen the documents nor heard the parties' evidence and argument, we cannot be certain that that will be our conclusion. The timing, content and notariety of the allegations recorded in the documents are arguably relevent even though we are -=-_.~__~_".______' _'__.,...~_..d~_..'_-,-('__._--:-,_.,_,.,.__~..,_'____'_'_..___ ___,_" ,_ (=.--.---~-;~4-~--.-~-----.--.-' - 10 - not asked to determine whether their contents are true The employer would be prejudiced by our seeing the documents only if we thEm treat them as some evidence of the truth ofth~ir contents. That would be b}lproper We will not deprive the union ; of its right to introduce arguably relevent evidence merely to humour a misapprehen- sion that we might assign the evidence significance it could not an4 should not properly bear We will receive the documents in question into evidence on the basis that they will in no event receive weight as evidence of the truth of their contents. We will determine whether their contents have the significance contended for by the union once we have heard all of the parties' evidence and' argument on the merits of the grievance before us. - Dated at Toronto this 14day of July, 1993 - Owen V Gray, Vice-Chair /c:1L/ a - E. Seymour, Member 0~~~ J Miles, Member 1