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HomeMy WebLinkAboutGray 08-12-19 IN THE MATTER OF AN ARBITRATION BETWEEN SENECA COLLEGE (the "College") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") RE: DISMISSAL GRIEVANCE OF HARVIA GRAY BOARD OF ARBITRATION: Michel G. Picher - Chair John Podmore - College Nominee Sherril Murray - Union Nominee APPEARANCES FOR THE COLLEGE: William LeMay - Counsel Bushra Rehman - Counsel Kavita Chhiba - Director, Human Resources Services Fran Manson - Human Resources Partner Jane Wilson - Acting Director Diversity Centre Arthur Burke - Director, Counselling, Hearing Centres, Disability & Health Services APPEARANCES FOR THE UNION: Ed Holmes - Counsel Robin Gordon - Grievance Officer Laurence Olivo - Vice-President, Local 560 The hearing in this matter was held in Markham, Ontario on November 18, 2008. 1 PRELIMINARY AWARD This is a preliminary award dealing with a request for adjournment made by the Union. Should this Board adjourn the arbitration hearing of the discharge of probationary employee Harvia Gray pending the outcome of a complaint, also against her discharge, which she has filed with the Human Rights Tribunal of Ontario? The Union submits that we should adjourn in the circumstances while the College argues that we should not. The pertinent background facts may be briefly stated. Ms. Gray received notice of her appointment to the faculty of the College as a councillor by a letter from the Director of Human Resources Services dated December 20, 2006. She therefore entered employment as a probationary employee. By way of a letter dated October 16, 2007, she was advised that her employment was being terminated before the expiry of her probationary period as, in the words of her supervisor: Probation is designed to provide a chance to look at the fit between the programs involving needs and goals and my perception of your ability to help meet those needs and obtain those goals. I have, after much agonizing, determined that this is not the fit that I am looking for. Thus I have decided to exercise the right, during the probationary, (sic) to give you two weeks' notice of termination. The grievance, dated October 31, 2007, states, in part 2 My grievance is that I have been dismissed without just cause. - further, the dismissal was in bad faith. Ms. Gray also filed an application under section 34 of the Human Rights Code seeking relief from the Human Rights Tribunal of Ontario for what she alleged was discrimination based on race, colour, sex and reprisal or threats of reprisal. The application indicates that she named the College and her supervisor as respondents. The College duly filed a response to the application. The Union has not been named as a respondent. The Union advises, however, that it is seeking intervener status in the human rights proceedings. In accordance with recent changes brought to the human rights complaint system in Ontario, the grievor has independent and direct carriage of her own complaint before the Human Rights Tribunal of Ontario. To that end she has retained her personal legal counsel. By letter to her Union, her counsel has advised that Ms. Gray wishes to see this grievance held in abeyance pending the conclusion of the proceedings before the Human Rights Tribunal. Counsel for the Union therefore makes a preliminary motion for the adjournment of this arbitration until such time as the grievor's separate complaint before the Human Rights Tribunal has been disposed of. Counsel for the Union notes that the grievance before this Board of Arbitration alleges bad faith as well as discrimination contrary to the 3 Ontario Human Rights Code in the discharge of Ms. Gray. He submits that in the circumstances this Board should adjourn its proceedings pending either a decision on the merits from the Human Rights Tribunal or, alternatively, a decision by the Human Rights Tribunal to defer to this arbitration process. According to counsel for the Union the jurisdiction of this Board to deal with issues which also arise under the Human Rights Code is at best a concurrent jurisdiction. He stresses that the Supreme Court of Canada has characterized human rights issues as being "quasi-constitutional" and that the new procedures governing human rights complaints in Ontario effectively reduce the role of the Human Rights Commission and give carriage of the complaint to the person who complains. He submits that there is reason to expect that the process will be more expedited than was previously so for human rights complaints. Counsel for the Union notes that the allegations in respect of the human rights complaint are the same allegations as relate to this grievance under the collective agreement. In the result, he submits, the grievance cannot be resolved without resolving the issues which are the subject of the human rights complaint. In that circumstance he submits that for this Board to take jurisdiction to hear those issues would effectively undermine the grievor's statutory right to have carriage of the complaint before the Human Rights Tribunal. 4 He also submits that the failure to adjourn could result in conflicting findings, should the Human Rights Tribunal also decide to proceed, and possible conflicting remedies result. While counsel acknowledges that the Human Rights Tribunal might defer should we decide to proceed, he submits that this Board should let the Tribunal make that decision before proceeding any further with this hearing. In support of the Union's position counsel cites to this Board the following award of Grievance Settlement Board Vice-Chair M. Lynk: RE The Crown in right of Ontario (Ministry of Community Safety and Correctional Services) and Ontario Public Service Employees Union (Therrien) (2008), 173 L.A.C. (4th) 193 (Lynk). In that case the grievor's complaint under the Human Rights Code was made against the Union and its local president. Ultimately Vice-Chair Lynk declined to adjourn, in part because the legal issues in the human rights and the arbitration proceedings were somewhat separate. However counsel points to the following passage from the award, at p. 207: Had I been persuaded that the evidentiary and legal issues in the human rights complaint would be significantly influential in the determination of all, or most of, the grievances, I would have granted the adjournment request, notwithstanding the other facts which favoured the Employer's argument. If the outcome of the grievances was sequentially dependent on the determination of the human rights complaint, then the Union would have been in an impossible, or close to impossible, representational position, and an adjournment would have been the fairest procedural option. That, however, is not the factual case here. 5 Counsel for the College submits that to adjourn these proceedings would verge on an abuse of process. Firstly, he stresses the issues to be resolved in this arbitration are broader than those to be dealt with in the human rights complaint. In accordance with the jurisprudence, he reminds this Board that the issues in respect of1he termination of a probationary employee are whether the decision of the employer was arbitrary, discriminatory or in bad faith. The issues of arbitrariness and bad faith are not matters which will be dealt with by the Human Rights Tribunal. In the result, should the grievor be unsuccessful in her allegation of discrimination before that Tribunal, she could nevertheless seek to return for a second hearing before this Board on the alternative grounds of bad faith, and possibly arbitrariness. That, he submits, is tantamount to allowing the grievor to litigate her discharge twice, obviously at greater cost and resulting prejudice to the College. Citing the decision of the Supreme Court of Canada in District of Parry Sound Social Services Administration Board v. Ontario Public Service Employees' Union, Local 324, (2003)) 230 D.L.R. (4th) 257, counsel states that there is no question but that this Board has the fullest jurisdiction to interpret and apply the provisions of the Human Rights Code and to provide the remedies contemplated within the Code. He submits that the jurisprudence is clear that we have concurrent jurisdiction. Additionally, counsel points to the rules of procedure of the Human Rights Tribunal of Ontario, stressing the provisions of rule 14.1 which reads: 6 The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party. Counsel emphasizes that while it is still early in the day for the new Tribunal regime in Ontario, there is every indication that the Human Rights Tribunal of Ontario will, as a normal rule, defer complaints in circumstances where the issues raised can be arbitrated under the terms of a collective agreement. In confirmation of that position he cites to this Board's attention three decisions of the newly constituted Tribunal: Aubin v. Regional Municipality of Waterloo (2008), CHRR Doc. 08-804,2008 HRTO 214; Cray v. Rouge Valley Health System (2008), CHRR Doc. 08~654, 2008 HRTO 120 and Kench v. Automodular Assemblies Inc. (2008) CHRR Doc. 08-756, 2008 HRTO 188. In all three of the cited decisions the Tribunal, by interim decision, has deferred to the grievance and arbitration procedures under subsisting collective agreements. The emerging general policy of the Tribunal appears to be reflected in paragraph 4 of the Regional Municipality Waterloo decision which reads as follows: 4. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal 7 must also consider, in light of particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application. In this case, the parties have not identified any circumstances that would cause the Tribunal to depart from its normal approach. 5. In these circumstances deferral is appropriate. The Tribunal orders the deferral of this Application pending the conclusion of both grievances. The Tribunal directs the parties' attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on after the grievances have been concluded. It might also be noted that in the Rouge Valley Health System case the complaining employee opposed deferral to arbitration while the respondent employer favoured it. In that circumstance, at paragraph 6 of its decision, the Tribunal stated, in part: "The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. ... The applicant did not identify any particular circumstance which would cause the Tribunal to depart from its normal approach." Counsel for the College submits that the indefinite adjournment of this arbitration, with the possibility of a lengthy delay and the resulting doubling of proceedings would unnecessarily and unduly prejudice the employer. That is particularly so, he submits, given that a year has elapsed since the grievor's discharge, and that any further delay could involve greater ongoing liability in the form of compensation for wages and benefits lost, should this matter be delayed further. This is, counsel submits, a clear case of labour relations delayed being labour relations denied. 8 In further support of its position that we should not adjourn, the College cites the decision of the Nova Scotia Court of Appeal in Halifax Regional Municipality v. Nova Scotia Human Rights Commission (2008), 171 L.A.C. (4th) 1 as well as a decision of the Alberta Court of Appeal in Calgary Health Region v. Alberta (Human Rights and Citizenship Commission) (2007), 281 D.L.R. {4th) 252. How, then, should a board of arbitration deal with a preliminary motion to adjourn its proceedings pending the hearing and resolution of a parallel complaint before a human rights tribunal? Firstly, it is incumbent upon a board of arbitration to recognize that it has the jurisdiction to interpret and apply employment related statues, including human rights codes, as though they were part and parcel of the collective agreement, as was confirmed by the Supreme Court of Canada in Parry Sound. Secondly, boards of arbitration must appreciate that taking jurisdiction should not be automatic, and that where there is a request to defer pending the outcome of proceedings before a statutory tribunal, regard must be had to all of the facts and issues at play. If, for example, there is something inherent in the issues or the positions of ~arious parties which would indicate that the statutory tribunal is better suited to deal with the elements of the grievance which are within its specialized jurisdiction, there may well be reason to defer. Careful regard must be had to those kinds of elements to determine, on an overall balancing of interests, what is the most appropriate procedural outcome, and the outcome which will produce the least prejudice to any party. Additionally, to the extent 9 possible, regard should be had to the rules and policies of the statutory tribunal itself. If there is substantial reason to believe that it would be disposed to defer to a board of arbitration, arbitrators should avoid forcing the parties into a position of dilatory renvoi that may simply add cost and delay to the overall process. In our view guidance can also be gained from the decisions. of the Alberta Court of Appeal in the Calgary Health Region decision as well as the Nova Scotia Court of Appeal in the Halifax Regional Municipality case. The Calgary case is close to being at all fours with the grievance before us. There a nurse's employment was terminated during her probationary period. Her union grieved and she separately complained to the Human Rights and Citizenship Commission alleging a discriminatory discharge by reason medical disabilities. When the matter came before the board of arbitration the position of the employer was that the arbitration board has exclusive jurisdiction over the human rights issues and should proceed. The union argued that the arbitration board's jurisdiction was concurrent with that of the Commission but that the board of arbitration should defer the hearing of the grievance pending the outcome of the complaint before the Commission. At pp. 265-266 the Court of Appeal reasoned as follows: (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 10 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 of 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 grievances, 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 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 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 11 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 estoppels may arise and can be addressed by the parties at an appropriate time. The decision of the Nova Scotia Court of Appeal in the Halifax Regional Municipality case provides a leading example of the analysis to be followed in determining the lines of jurisdiction as between the two statutory tribunals, in that case a board of arbitration under the Trade Union Act of Nova Scotia, R.S.N.S. 1989, c. 475, 12 and the Nova Scotia Human Rights Commission under the Nova Scotia Human Rights Act, R.S.N.S. 1989, c. 214, having considered the approach taken by the Supreme Court of Canada in Quebec (Commission des droits de la personne et des droits . de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 240 D.L.R. (4th) 577,128 L.A.C. (4th) 1 C'Morin") and Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 125 DooR. (4th) 583. While the award in the Halifax Regional Municipality case does not, as in the Calgary case, deal with the issue of whether a board of arbitration should or should not defer to a human rights tribunal, it confirms the view that the jurisdiction of boards of arbitration in such cases is concurrent, and not exclusive, just as the jurisdiction of the human rights commission is concurrent and not exclusive. How, then, do the principles reviewed above come to bear in the case at hand? When all of the factors, are considered we feel compelled to the conclusion that this is a case where it is appropriate for this Board of Arbitration to proceed rather than to adjourn by reason of the fact that a complaint has been filed with the Human Rights Tribunal of Ontario. We come to that conclusion on a number of grounds. Firstly, this Board does have concurrent jurisdiction to deal fully With the allegations of discrimination on all of the grounds cited in the human rights complaint. We are likewise empowered to authorize all of the remedies available to the Human Rights Tribunal. 13 Secondly, significant weight must be given to the general policy of the Ontario Human Rights Tribunal itself, as reflected in the decisions cited above. In the Tribunal's own words its "normal" approach is to defer to boards of arbitration where the facts complained of are being processed through the grievance and arbitration procedures provided under a collective agreement. As the Tribunal has noted, there may be considerations which might cause a departure from that general rule. In the case before us, however, no compelling considerations for exception have been brought to our attention. In other words, we are not aware of any issues or arguments which give this Board reason to believe that the normal policy of the Tribunal, namely to defer to the grievance and arbitration process, would not be followed in the case at hand. Thirdly, the equities and balancing of interests strongly suggest, to borrow the words used in the Calgary case, that arbitration is a "better fit" in all of the circumstances of the case at hand. Because the grievor is a probationary employee, the scope of this arbitration will be broader than the scope of the complaint which could be heard by the Tribunal. Our jurisdiction extends not only to the issue of discrimination, but also to the separate heads of whether the grievor's termination was arbitrary or in bad faith, even absent any finding of discrimination. To that extent we are better situated to provide a single forum solution to the resolution of all three issues in a way that the Tribunal is not. To adjourn these proceedings pending the decision of the Tribunal could, in these circumstances, result in unnecessarily bifurcated proceedings, particularly if the grievor should not be successful before the Tribunal. That outcome would obviously occasion a substantially greater expenditure of time and resources. 14 Finally, as noted above, this Board has been made aware of no facts or issues which, by their nature, would suggest that there are in fact compelling reasons to adjourn these proceedings or that the Ontario Human Rights Tribunal is better positioned to deal with this matter. While we must be open to consider and weigh any such factors, none have been presented to us beyond the bare fact of the grievor's personal preference. While that is not insignificant it does not, in our view, outweigh the prejudice which might otherwise be visited upon the College should we adjourn these proceedings. For all of these reasons the Board concludes that it is not appropriate to adjourn this arbitration by reason of the fact that the grievor has made a separate complaint before the Ontario Human Rights Tribunal. The Union's request for adjournment is therefore denied. Dated at Ottawa this 191h day of December, 2008. 15 Michel G. Picher Chair "] concur" John Podmore Nominee for the College "I dissent" Sherril Murray Nominee for the Union