The URL can be used to link to this page

Home My WebLink About1990-2054.Mirosolin.91-08-19-- ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL'ONTARIO GRIEVANCE CPMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO M5G lZ8 TELEPHONEiTELEPHONE. (416) 326-7388 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G lZ8 FACSIMILE ITELECOPIE. (416) 326-7396 2054/90 IN THB HATTER OP AN ARBITRATION Under THE CROWN BMPLOYEES COLLBCTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Mirosolin) Grievor -and The Crown in Right of Ontario (Ministry of the Attorney General) Employer BEFORE: R. Verity Vice-Chairperson M. Lyons Member H. Roberts Member FOR THE R. Anand GRIBVOR Counsel Scott & Aylen Barristers & Solicitors FOR THE G. Gledhill EMPLOYER Staff Relations Officer Human Resources Branch Ministry of the Attorney General HEARING July 8, 1991 -------------------------------- 2 INTERIM DECISION Sybil Mirosolin is one of five Criminal Court Clerks who works for the Ministry of the Attorney General at 80 The East Mall in Etobicoke. In a grievance dated August 3, 1990, she claims discrimination by the Employer, contrary to the provisions of Article A of the collective agreement. In essence, the grievor claims discrimination by the Employer arising from alleged differential treatment on the basis of race. The grievor is the only non-white employee of the five Court Clerks. Article A is a new provision in the collective agreement which came into effect on June 15, 1990. Article A reads as follows: ARTICLE A -NO DISCRIMINATION/ EMPLOYMENT EQUITY A.l There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in section 9(1) of the ontario Human Rights Code (OHRC) . A.2 It is recognized that in accordance with section 13 of the OHRC, the Employer's employment equity program shall not be considered a contravention of this article. The Union advised the panel that the gist of the grievor's claim is that her time at work was monitored excessively, that she was harassed when she made legitimate requests for time off, and 3 that there was an "on-going and continuing practice of favouritism" in the office with resulting adverse treatment of the grievor and other non-white employees. The parties agreed that the Board's jurisdiction under Article A is limited to the period from June 15, 1990 to the date of the filing of the grievance on August 3, 1990 (some 49 calendar days). The parties disagree, however, on the scope of the evidence which the panel should hear. By way of preliminary objection, the Employer sought to limit the introduction of evidence which we would receive to the period between June 15 and August 3, 1990. The thrust of the Employer's brief submission was to the effect that it would be improper for us to hear evidence prior to or after the 49 day period in the absence of jurisdiction to grant a remedy. The Employer relied upon the following authorities: OPSEU (Union Grievance) and Ministry of Tourism and Recreation, 756/87 (Fraser); OPSEU (Van Der Akker) and Ministry of Correctional Services, 2542/87 (Fisher); and OPSEU (Homavazir) and Ministry of Government Services, 247/89 (Verity). The nature of the evidence the Union seeks to adduce falls into three categories within specified time frames as follows: 1) events on particular dates in 1989 and 1990 relating to start and departure times of employees, together with attendance sheets and corresponding Court room 4 utilization sheets. 2) the strict monitoring of the grievor's hours of work in terms of time off and start and departure times, including six "incidents" between 1986 and 1989. 3) differential treatment by the Court Administrator of other non-white employees on three occasions between 1988 and 1990. Counsel for the Union vigorously opposed the Employer's request to limit the introduction of evidence while at the same time acknowledging that no remedy was being claimed prior to June 15, 1990. Mr. Anand contended that the panel must hear "background evidence" in light of the lengthy history of friction, complaints, alleged management inaction and harassment in order to properly understand the events being grieved. In the alternative, Union counsel contends that evidence outside the 49 day time frame is admissible because this is a continuing grievance, or in the further alternative, the evidence constitutes' admissible similar fact evidence or evidence of a pattern and practice. As a final alternative, it was contended that such evidence was admissible under the legal inference of presumption of continuance. In support, we were referred to the following authorities: Re City of Toronto and Canadian Union of Public Employees, Local 79 (1982), 133 D.L.R. (3d) 94 (Ont. C. A.); OPSEU (A. Tay,lor-Baptist) and 5 Ministry of Correctional Services, 163/87 (Kennedy); Sweitzer v. the Queen (1982), 68 C.C.C. (2d) 193 (S.C.C.); Graesser v. Porto (1983) 4 C.H.R.R. 0/1569 (ant. Bd.); Zarankin and Johnstone (1984) 5 C.H.R.R. 0/2274 (B.C. Bd.); Olarte et al and Commodore Business Machines Ltd. and DeFilippis (1983) 4 C.H.R.R. 0/1399 (ant. Bd.); Re Steinberg Inc. and Commercial Workers Union, Local 486 (1984), 16 L.A.C. (3d) 171 (Fraser); and Prince Albert Co-operative Association Limited v. Retail, Wholesale and Department Store Union, Local 496 and Saskatchewan Labour Relations Board [19831, 1 W.W.R. 549 (Sask. C. A.). On the authorities submitted, the Employer's preliminary objection is simply without merit. S. 20(8) of the Crown Employees Collective Bargaining Act gives the Grievance Settlement Board the statutory authority to determine its own practice and procedure by giving "full opportunity to the parties ...to present their evidence and to make their submissions". Clearly, a panel of the Grievance Settlement Board has a wide latitude to hear evidence and thereafter to assess the weight, if any, to be accorded such evidence. In OPSEU (Taylor-Baptist) and Ministry of Correctional Services, supra, a case of alleged harassment by a supervisor, the panel was faced with a similar argument whereby the employer sought to limit the introduction of evidence to matters that had taken place within 20 days prior to the date of the filing of the grievance. 6 In rejecting that argument, Arbitrator Kennedy advanced the following rationale, in part, at pp. 4 and 5: Once the grievance is properly before us within the procedures laid down in the collective agreement, the appropriate scope of evidence is governed by the normal principles dealing with the admissibility of evidence and its relevance to the issues to be arbitrated. In the context of labour relations, matters cannot and ought not to be determined in a vacuum, and past events are customarily covered in the evidence in order to place a particular incident that is the subject matter of a grievance into its proper context in the light of the on going employment relationship. It is immaterial that those past events can no longer form the basis of a grievance due to the time limit provisions of the collective agreement. If we were to accept Mr. Benedicts objection that evidence be limited to events occurring no earlier than 20 days prior to the grievance, we would in substance exclude the greater proportion of evidence that is heard in numerous cases by this board on a day-to-day basis. We adopt the Kennedy rationale in the Taylor-Baptist case, as being equally applicable to the instant grievance. Accordingly the preliminary objection is dismissed and the hearing on the merits shall proceed as scheduled for September 10, 1991. DATED at Brantford, Ontario, this 19th day ofAugUlit, 1991. . '\":;:. <tiIC~---__--.... ~~ .. R.:;". VERITY, Q. C >,-VICE-CHAIRPERSON ~_.~ . /. ~ /' . /: -Y' // ~ "'-'...~ .t.--r ;-~" ... ~ " .~ ":..-~/. ;:r:-:" """"... ". M~LYONS -MEM... / ~~ C IL-r-:-. .. .. .. .. :.K ~~ ;. H. ROBERTS -MEMBER