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HomeMy WebLinkAbout2006-1932.Barillari.08-04-10 Decision Commission de Crown Employees Grievance Settlement règlement des griefs Board des employés de la Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tél. : (416) 326-1388 Fax (416) 326-1396 Téléc. : (416) 326-1396 GSB# 2006-1932 UNION# 2006-0211-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Barillari) Union - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFOREVice-Chair Joseph D. Carrier FOR THE UNION Tim Hannigan Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER George Parris Counsel Ministry of Government and Consumer Services HEARING February 14, 2008. 2 Decision Before me is the grievance of Rosie Barillari dated October 30, 2006 alleging that she was ?dismissed without just cause? from her position as an Income Support Specialist with the Ministry of Community and Social Services (Ontario). The letter of termination from Mr. Rick Beauchamp, Regional Director (Acting) was dated October 23, 2006. The letter outlines a litany of behaviour which was characterized as insubordinate and/or inappropriate. The conduct related to the Grievor?s alleged failure to co-operate in providing medical information and/or attending for an independent medical examination relevant to an absence or series of absences from work. The Grievor, through her Union, has requested that this hearing before the Grievance Settlement Board be deferred pending the hearing of a complaint which was filed with the Ontario Human Rights Commission by the Grievor on or about October 20, 2006, that is, just prior to her termination. The Employer, represented by Mr. George Parris, argues that the matter should proceed before the Grievance Settlement Board. As at the last day of hearing before me, Counsel advised that the Human Rights Commission had not yet scheduled the matter for hearing but was considering whether or not to assume jurisdiction, dismiss or defer the matter to that before the Grievance Settlement Board. In the circumstances, the Parties ask that I determine: 1) my jurisdiction to deal with the Grievor?s unjust dismissal complaint and, in particular, any issues which might arise relevant to the Ontario Human Rights Code. 3 2) Whether or not to defer the matter before me pending a decision by the Ontario Human rights Commission concerning the Grievor?s complaint filed there. BACKGROUND Many of the allegations and facts asserted in the Grievor?s Human Rights Complaint overlap and connect with the reasons for her dismissal. Although the Grievance on its face does not allege discriminatory treatment, the Grievor?s position that the treatment she received leading up to and including her termination was unjust is premised, in large measure, upon its having been tainted by conduct which was in breach of the Human Rights Code. Indeed, having reviewed the substance of the complaint filed with the Commission, it is clear that the matters recited in that document could not be disregarded in the course of proceedings at arbitration to determine whether the Grievor?s termination had been unjust. Furthermore, the Union, on behalf of the Grievor, did not suggest that the issues before the Commission and here differ such that it could be conceded before me that there were no Human Rights breaches related to the Grievor?s dismissal. DECISION I have considered the information provided by Counsel, and their representations and find, for the reasons which follow: 1) that I have jurisdiction to deal with the Grievor?s complaint of unjust dismissal and, in particular, any issues relevant to the Human Rights Code which might arise during the course of these proceedings; 2) that my jurisdiction to deal with relevant issues concerning the Human Rights Code is concurrent with that of the Commission; 3) that I need not and do not defer to proceedings before that tribunal especially, since, I understand, proceedings on the merits have not yet been initiated there; 4 4) the matter will proceed before the Grievance Settlement Board in the ordinary course. REASONS By operation of the Crown Employees Collective Bargaining Act and, in turn, the Labour Relations Act of Ontario (s.48 12 j) I have power: (j) to interpret and apply human rights and other employment related statutes, despite any conflict between those statues and the terms of the collective agreement. In addition to the power conveyed by the legislation, the Parties? collective agreement s.3.1. provides that: There shall be no discrimination practiced by reason or race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in Section 10 (1) of the Ontario Human Rights Code (OHRC). The Employer?s conduct in terminating the Grievor is alleged to have been unjust. That it may have been unjust is, if not entirely, at least, in part, premised on allegedly discriminatory conduct in breach of the Human Rights Code. An arbitrator is not at liberty to disregard that legislation and discriminatory conduct and make a finding which is inconsistent with the Code. To do so would, in effect, be an endorsement of the discriminatory conduct which is in breach of the Code. I conclude that the dispute here including matters relevant to the Human Rights Code fall within my jurisdiction. On the other hand, pursuant to the Code, the Human Rights Commission also has jurisdiction to consider and resolve allegations of discriminatory conduct arising within the employment context. The Grievor?s Complaint has raised such issues before the Commission. 5 In the circumstances, it is my view that there is concurrent jurisdiction in the Human Rights Commission and the Grievance Settlement Board to deal with the dispute and the Human Rights issues raised by the Grievor in each forum. With respect to that finding and the question as to which forum takes precedence I was referred to the reasoning of the Alberta Court of Appeal in Calgary Health Region v. Alberta(Human th Rights and Citizenship Commission) ( 2007), 161L.A.C. (4) 222 at paragraphs 36 to 41: (ii) The Nature of the Dispute [36] The chambers judge characterized the dispute in this case as a challenge to the validity of the termination of employment, notwithstanding that the basis of the challenge is discrimination on prohibited grounds. She held that the arbitration board is the forum with the ?best fit? to handle the matter, and accordingly concluded that the arbitration board has exclusive jurisdiction to hear and determine the dispute. [37] With respect, we do not agree that an analysis of ?best fit? can lead to a finding of exclusive jurisdiction in this case. The intent to grant exclusive jurisdiction must be found in the legislation. The interplay of the two legislative schemes at issue here indicates that neither body was intended to have exclusive jurisdiction over all human rights issues that arise in a unionized workplace environment. As was confirmed in Morin, there is no presumption or arbitral exclusivity in the absence of a clear indication from the legislature. The grievance and the human rights complaint are within the respective mandates of the arbitration board and the Commission. There is nothing in the nature of this dispute that would remove it from the jurisdiction of one of those tribunals and place it exclusively within the jurisdiction of the other. This is a case of concurrent jurisdiction. [38] Nevertheless, we agree with the chambers judge?s conclusion that the arbitration board should proceed to exercise its jurisdiction and continue to process the grievance, including the human rights issues it raises. Both the grievance and the human rights complaint focus on workplace events culminating in the allegedly discriminatory decision to terminate the employee?s employment. Although the provisions of the Labour Relations Code that establish the grievance procedure do not clearly grant the arbitration board jurisdiction to [page 236] the exclusion of the Commission, they do indicate a legislative preference to have arbitrators hear employer-union disputes in the interest of expeditious resolution of workplace differences. Permitting the 6 arbitration board to address all issues arising from the termination of employment advances the purposes of labour relations legislation, including promoting the prompt, final and binding resolution of disputes with minimal disruption to the employer-employee relationship: Parry Sound at paras. 50-51. [39] In this case, the allegations of discrimination that have been raised in the human rights complaint are squarely before the arbitration board as part of the termination grievance. There is no concern that the employee might be left without a forum in which to air her allegations of discrimination, contrary to the clear intention of the legislature that all persons be able to access human rights legislation. The Supreme Court of Canada has held that labour arbitrators are capable of addressing human rights violations: Parry Sound at paras. 52-54. Having the discrimination claims proceed in that forum would not result in the loss of the employee?s right to have her complaint heard. The arbitration board is an appropriate forum to interpret the collective agreement and apply its provisions, including the discrimination clause contained therein. Conclusion [40] For these reasons, the appeal is allowed to the extent that the arbitration board and the commission are declared to have concurrent jurisdiction over the dispute. The arbitration board is an appropriate forum to address all issues raised in the dispute, and all issues are remitted to that board for determination. [41] As the legislation governing the Commission dictates that it also retains jurisdiction over the human rights issues raised by the employee, it is not appropriate at this point to prohibit the Commission from continuing to process that complaint.If all matters are determined by the arbitration board, then issues of res judicata and issue estoppel may arise and can be addressed by the Parties at an appropriate time. My jurisdiction does not extend to nor do I need to rule on the continuing jurisdiction of the Human Rights Commission addressed by the Alberta Court of Appeal at para. 41 of its decision. With respect to the other elements of the decision, although the Alberta Human Rights legislation is not identical to that in Ontario, the relevant aspects of the two are similar enough that the comments of the Appeal Court there can be reasonably applied here. Minimally, an arbitrator?s jurisdiction and obligation to consider and apply Human Rights legislation has also been endorsed in Ontario. (See, for instance, Parry 7 Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (OPSEU), [2003] 2 S.C.R. 157 (SCC)). In the circumstances before me, the Union has been reticent to clarify its intent to rely on discriminatory conduct. However, it has confirmed its intent to bring forward every argument and to pursue every issue necessary to show that the Grievor was terminated without just cause. Further, it has confirmed that any rights which the Grievor might have with respect to her termination would not be waived. It is, therefore, clear that the Union will be obliged to pursue and that this Board will be obliged to consider the Employer?s conduct and the Grievor?s termination in the context of potential violation(s) of the Human Rights Code. I conclude that this is an appropriate forum to address those issues. Further, since the Commission has yet to confirm its intent to proceed, I direct that the matter be scheduled to proceed before the Grievance Settlement Board. th DATED at Toronto this 10 day of April 2008. JOSEPH D. CARRIER Vice-Chair Grievance Settlement Board