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HomeMy WebLinkAboutWatson 12-02-14 k i II - r IN THE MATTER OF AN ARBITRATION UNDER SECTION 48 and 5.0 OF THE LABOUR RELATIONS ACT 1995 BETWEEN Ontario Public Service Employees Union and its Local 433 ("the Union" or "OPSEU") AND Ongwanada ("the Employer") And in the matter of the grievance of Michelle Watson ("the` Grievor"), who asserts that the termination of her employment-was' contrary to the terms of the collective agreement and the Ontario Human Rights Code. BEFORE: R.O. MacDowell (Sole Arbitrator) APPEARANCES: For the Union: Peggy Smith (Counsel) (and others) For the Employer: V Panetta (Counsel) (and others) A hearing n this matter was held in Kingston, Ontario on Monday g g � _ � y February 13, 2012 l ' AWARD 1. This arbitration proceeding arises from the grievance of Michelle Watson, ("the Grievor") who challenges the termination of her employment. That termination occurred on February 7, 2011, because, ;(according to the Employer), Ms. Watson had failed to provide sufficient proof of a medical disability and had"abandoned"her employment. 2. Ms Watson denies the Employer's assertions and maintains that her termination' was contrary to both the terms of the Collective Agreement and the Ontario Human Rights Code: 3. At the time of her discharge the Grievor had been employed by Ongwanada for approximately 12 years. 4. A hearing in this matter was held in Kingston, Ontario, on February 13, 2012. The parties were agreed that I have been properly appointed under the terms of the Collective Agreement and that I have "jurisdiction" to hear and determine the matters in dispute between them. Section 48 of the Labour Relations Act includes the following provisions: 48(12) (j) An arbitrator.'..has power... to interpret and apply human rights and other employment related legislation, despite any conflict between those statutes and the terms of the collective agreement. 48 (17) Where an arbitrator or arbitration board determines that an employee has been discharged or otherwise disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject-matter of 2 the arbitration, the arbitrator or arbitration board may substitute such other penalty for the discharge or discipline as to the arbitrator or arbitration board seems just and reasonable in all the circumstances. 5. Section 48(12)0) of the Act facilitates what might be described as "one stop shopping" for workplace adjudication. It permits the arbitrator to interpret and apply. various employment statutes,in addition to whatever rights the employee may have under a collective agreement (see Parry Sound(District) Social Services Administration Board v. Ontario Public Employees Union, Local 324 [2003] 2 S.C.R. '157). Finally, for completeness, I should note that since the decisions of the Supreme Court of Canada in Weber v. Ontario Hydro (1995), 125 D.L.R. (4th)- 583 (S.C.C.); and in O'Leary v. R. (1995), 125 D.L.R. (0) 609 (S.C.C) and Parry Sound (District) Social Services Administration Board v. Ontario Public Employees Union, Local 324 [2003] 2 S.C.R. 157 an arbitrator also has jurisdiction to adjudicate certain claims that might otherwise be pursued in the Courts - and to give remedies similar to those that are available in Court. 6. I was referred to section 5 and section 24 of the Ontario Human Rights Code, (which require the Employer to "accommodate" a disabled employee to the point of "undue hardship"), and to Articles 3 of the Collective Agreement which duplicates the provisions found in the Code. The Collective Agreement also contains the usual provision requiring the Employer to have "just cause"before discharging an employee. 7. However, for present purposes it is unnecessary to set out the parties' positions in ` J. any detail. It suffices to say that the parties were content to deal with this dispute in 3 accordance with the simplified;"mediation-arbitration" process prescribed in Section 50 of the Laboyr Relations Act; and the parties were further agreed that in accordance with that provision, I may issue a brief"bottom line" decision,based upon the representations made and the materials produced or filed at the hearing. I was also urged to be mindful of the sensitivity of the medical information that underlies the Grievor's position and the parties' institutional need to protect privacy interests. 8. I have considered the representations of the parties, the agreements made, the documentary material put before me, the broad jurisdiction noted in paragraph 5 of this Award, and the parties' submissions about how I ought to exercise that jurisdiction in the particular circumstances of this case. On that basis, I make the following direction: (a) The Grievor shall be reinstated to inactive employment in accordance with the terms stipulated by the parties on February 13, 2012; (b) On or before February 29, 2012,the Employer shall pay to the Grievor the sum of$14,663 as damages in respect of the "human rights" component of the Grievor's claim. 9. 1 will remain seized in the event that there is any difficulty implementing this decision or the other matters to which the parties have agreed. Dated at Toronto Ontario this 14th day of February 2012. ' ��R.O. Mac,UQweLL`, R.O. MacDowell, Sole Arbitrator 4