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Home My WebLink About2010-0031.Hussain.11-04-06 Decision Commission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD 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 7pO Fax (416) 326-1396 7pOpF GSB#2010-0031 UNION#2010-0542-0008 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Hussain) Union - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFOREJoseph D. Carrier Vice-Chair FOR THE UNIONJane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYERBenjamin Parry & Jamie Kneen Ministry of Government Services Labour Practice Group Counsel HEARING March 31, 2011. - 2 - Decision [1]The Grievance before me alleges that Mr. Faisal Hussain, who had been employed for approximately eight years as a Family Responsibility Officer with the Minister of Community and Social Services of Ontario, was terminated without just cause. [2]In a letter dated February 22, 2010, Ms. Nancy Liston, Director of Client Services outlined to Mr. Hussain the reasons for his dismissal. Those reasons identified inappropriate conduct inconsistent with his office including: 1.The preparation of false pay stubs in relation to a fraudulent mortgage brokering scheme; 2.Disclosure of confidential Ministry documents to non-Ministry persons; 3.Engaging in a private financial business and devoting some of his regular work hours to that business; 4.Using his government equipment and resources to receive and disseminate inappropriate images. [3] Proceedings on the merits of this matter beJDQLQ'HFHPEHU%HIRUHWKH(PSOR\HU¶V first witness had completed his testimony in Chief, the Employer received from the Human Rights Tribunal of Ontario a Notice advising: 1.That it had accepted an Application from Mr. Hussain on February 17, 2011, alleging that he had been discriminated against in respect to his employment and terminated contrary to the Human Rights Code and 2.7KDWWKHWULEXQDOKDG³GHWHUPLQHd that it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding dealing with the VXEMHFWPDWWHURIWKH$SSOLFDWLRQ´ - 3 - [4] Having received that Notice, the Employer recognized that the issue in the Human Rights Complaint and those before me, if not identical, at least significantly overlapped. Accordingly, Counsel for the Employer brought forth the current Motion that this Board, in adjudicating Mr. +XVVDLQ¶VWHUPLQDWLRQDVVXPHMXULVGLFWLRQDQGWDNH into evidence and consideration all elements SHUWDLQLQJWRWKH*ULHYRU¶V+XPDQ5LJKWVFRPSODLQt in the hope and expectation of avoiding the pitfalls which can result when two tribunals adjudicate upon essentially or largely the same issues. [5] I have not been asked by either party to defer proceedings here to those before the Human Rights Tribunal. Rather, the Employer asks simply that I assume jurisdiction to deal with all DVSHFWVRIWKH*ULHYRU¶VXQMXVWdismissal complaint and, in particular, any issues which might arise relevant to the Ontario Human Rights Code including any matters identified in Mr. +XVVDLQ¶VDSSOLFDWLRQWRWKDWWUibunal. The Union does not oppose the Motion, rather it takes no SRVLWLRQIRURUDJDLQVWWKH(PSOR\HU¶VUHTXHVW BACKGROUND [6] The Grievance filed March 1, 2010 alleges thDW0U+XVVDLQ¶VWHUPination constituted a violation of his Collective Agreement rights. Although it does not specifically identify the Article 3 which prohibits discrimination, it does UHIHUHQFHULJKWVXQGHU³DQ\RWKHU$FW´DQGLV therefore, broad enough to include treatment he received which was in breach of the Human Rights Code. [7] The application to the Human Rights Tribunal alleges systemic discrimination against Mr. Hussain and other visible minorities in his offiFHZKLFKFXOPLQDWHGLQKLVEHLQJ³XQMXVWO\ UHSULVHGDQGWHUPLQDWHGIURPP\MRE´7KHUHLV little in the Human Rights application by way of - 4 - particulars of discriminatory conduct except as to the manner in which the employer investigated, suspended and finally terminated Mr. Hussain. It is clear that any such allegations could not be disregarded in the course of proceedings before me. My jurisdiction and that of this Grievance Settlement Board extends, at least, to ensuring that our decisions are not inconsistent with relevant employment legislation. [8] Accordingly, a finding which did not take into consideration a potential violation of the Human Rights Code might prove inconsistent with that legislation. It is, therefore, incumbent upon me to consider any such potential misconduct in deciding the matter (s) before me. [9] Here, the Employer asserted, and the Union did not object or challenge, that the issues before the Tribunal significantly overlapped with those before me. THE DECISION [10] In a situation similar to that presently before me, but, where the Union had moved to defer proceedings before the Board to those before the Human Rights Tribunal, I made the following findings (see Re OPSEU (Barillari) and Ministry of Community and Social Services GSB #2006-1932, dated April 10, 2008 (Carrier)) at pages 3 and 4: ³,KDYHFRQVLGHUHGWKHLQIRUPation provided by Counsel, and their representations and find, for the reasons which follow: 1)That I have jurisdiction to deal with the *ULHYRU¶VFRPSODLQWRIXQMXVWGLVPLVVDODQG 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; - 5 - 4)The matter will proceed before the Grievance Settlement Board in the ordinary course. I adopt those findings here as well as thH³5HDVRQV´DWSDJHVDQGDVIROORZV ³%\RSHUDWLRQRIWKH&URZQ(PSOR\HHV&Rllective 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 thHOHJLVODWLRQWKH3DUWLHV¶FROOHFWLYH agreements.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). 7KH(PSOR\HU¶VFRQGXFWLQWHUPLQDWLQJWKH*ULHYRULVDOOHJHGWRKDYHEHHQXQMXVW7KDW 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 WKHHPSOR\PHQWFRQWH[W7KH*ULHYRU¶V&RPSlaint has raised such issues before the Commission. 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 byWKH*ULHYRULQHDFKIRUXP´ As in the Barillari case, the Board here will be obliged to consider thH(PSOR\HU¶VFRQGXFWDQG WKH*ULHYRU¶VWHUPLQDWLRQLQWKHFRQWH[WRISRWHQWLDOYLRODWLRQVRIWKHHuman Rights Code. [11] I conclude that this is an appropriate forum to address those issues. Further, since the Human Rights Tribunal has yet toFRQILUPLW¶VLQWHQWWRSURFHHGDQGLQGHHGDSSHDUVUHDG\WR defer to this Board, I direct that this matter proceed as scheduled before the Grievance Settlement Board. [12] The Union is directed to provide additional particulars, if any, of the employer conduct which is alleged to have been discriminatory. Failure to do so promptly and, no later than the - 6 - end of April, may impede its right to call evidence concerning matters which have not been particularized with respect to the who, when, what and where of the conduct and the manner in which it is alleged to have been discriminatory. th Dated at Toronto this 6 day of April 2011. Joseph D. Carrier