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HomeMy WebLinkAbout2013-2789.Bharti.14-09-11 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2013-2789 UNION#2013-0362-0022 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Bharti) Union - and - The Crown in Right of Ontario (Ministry of Natural Resources and Forestry) Employer BEFORE Ian Anderson Vice-Chair FOR THE UNION Billeh Hamud Ontario Public Service Employees Union Grievance Officer FOR THE EMPLOYER Jonathan Rabinovitch Ministry of Government Services Legal Services Branch Counsel HEARING September 9, 2014 - 2 - Decision [1] The Ontario Public Service Employees Union ("the Union") seeks an interim remedy from the Grievance Settlement Board ("The Board") pursuant to section 48(12)(i) of the Labour Relations Act, 1995, Rule 10 and Appendix "A" of the Board's Rules of Procedure, to accommodate Mr. Viren Bharti ("the Grievor") by permitting him to work in the Greater Ottawa Area until the final disposition of his grievance. Background [2] In 2005, the Grievor applied and was hired for the position of Terrestrial Assessment Program Biometrician (a statistician). The job posting indicated that the position was located in either Sault Ste. Marie (preferred) or Peterborough. At the time of hire, the Grievor informed the Employer of his intention to sell his home in Ottawa and relocate his family to Sault Ste. Marie. The Employer agreed to temporarily allow the Grievor to work from the Peterborough office until he secured the sale of his home and then relocated to Sault Ste. Marie. The Employer later allowed the Grievor to work permanently from Peterborough. [3] The Grievor has continued to live in Ottawa. Since 2006, the Grievor has been seeking permission to work from Ottawa. The Grievor is the only statistician in the section and his work is necessary to support the department’s ongoing needs. The Employer’s view is that work is best performed in Peterborough or Sault Ste. Marie. [4] In March 2013 the Grievor filed the present grievance. As initially filed the grievance simply alleged “that the Employer did violate the Human Rights Code by not accommodating religious observance requests”. The remedy requested was “that the employee be accommodated for religious observances in accordance with the employee’s religious beliefs”. As reflected in a decision dated June 24, 2014, on the agreement of the parties the Union was permitted to expand the grounds of the Code which it said were engaged, but it was required to file full particulars with respect to all such grounds by a specified date. [5] The Union provided particulars to the Employer as directed by the June 24, 2014 (although they were not filed with the Board). In those particulars, the Grievor alleges that his sincerely held religious beliefs as a married Hindu man require him to pray with his wife twice per day: once in the morning and once in the evening. The Grievor also alleges that both of his parents, who reside with him and are in their mid seventies, require certain forms of daily care that he provides. He also notes that he is the only person in the household who speaks a language spoken by his parents (Bhojpuri). (However, his parents also speak Hindi. At the hearing he confirmed that his wife speaks Hindi, as do, to some extent his children ages 13 and 20.) The Grievor alleges that the Employer’s requirement that he work from the Peterborough office substantially interferes with these obligations contrary to the Code. The remedy sought by the Grievor is that the Employer accommodate his religious beliefs and family status obligations by permitting him to work permanently from the Greater Ottawa Area. - 3 - [6] In the winter of 2014, the Grievor informed his manager, Joseph Kapron, that his mother- in-law had passed away. As part of the mourning process in his culture and/or religion, he told Mr. Kapron that he had various responsibilities over the coming months, culminating in a trip to the Ganges River in India in September or October of 2014 in order to dispose of the ashes. Mr. Kapron granted the Grievor a temporary arrangement to work from Ottawa from March to October 31, 2014. The arrangement was captured in a Memorandum of Understanding (MOU) signed by the parties on a without precedent or prejudice basis. The Grievor was tasked with a specific project the Employer felt could be accomplished while working from Ottawa. [7] In this application for interim relief, the Union seeks an order that the Grievor be permitted to continue to work from Ottawa until the final disposition of the underlying grievance. Hearing dates for the grievance are currently scheduled for November 12, December 4 and 11, 2014. Proceedings [8] In support of this application for interim relief the Union filed a declaration from the Grievor. The Employer filed a declaration from Mr. Kapron in response. The Grievor’s declaration essentially repeats the particulars he provided in relation to his grievance, summarized above. At the outset of the hearing of its application for interim relief, the Union sought leave to call the Grievor as a witness to give evidence with respect to why his wife could not move to Peterborough. The Employer objected to this request. I sustained the Employer’s objection. My reasons for doing so are as follows. [9] An application for interim relief is an extra-ordinary procedure. The Board has rules governing such applications. The moving party triggers the process by filing the application and in doing so has control over the material filed in support of its application. The rules require that the application be accompanied by a declaration “particularizing all of the facts on which the applicant relies in its request for interim relief”. The significance of this requirement is underlined by the fact that the rules provide that the Board may dispose of an application without a hearing and without requiring a response. A responding party is required to file its response within tight time frames. Hearings are scheduled on an expeditious basis (indeed, in this case an evening hearing was scheduled in order to accommodate the parties) and decisions similarly are expected to be issued expeditiously. [10] The rules also provide as follows: 7. A party seeking to rely upon facts that are not contained in the signed declarations that have been filed in the application shall provide the other party and the Grievance Settlement Board notice of its intention to rely upon such facts, a statement of such facts, and the reasons why the Board should permit it to do so. Leave of the Board is necessary for these facts to be introduced. Such notice shall be provided at least two days in advance of any hearing in which the interim application is to be determined although the Board may, in its discretion, permit the submission of such facts. - 4 - In this case, the Union gave no notice, filed no statement of additional facts upon which it sought to rely and provided no reasons as to why it should be permitted to do so. [11] In my view, permitting the Union to proceed by calling previously unparticularized oral evidence was inconsistent with the very procedure of which it had availed itself. For these reasons, I declined to permit the Union to call the Grievor as a witness and directed it to proceed to its submissions. Analysis and Decision [12] The Union argues that it meets the two-fold test for interim relief adopted by this Board: it has an arguable case; and the balance of harm or inconvenience favours granting the relief requested. It states that the Board has stated that the primary focus is on maintaining the status quo. , In this case it argues the status quo is that the Grievor is working from Ottawa. [13] With respect to the first part of the test, the Union argues that for the purposes of determining whether it has an arguable case, the assertions contained in the Grievor’s declaration must be treated as true. It argues that the Grievor’s assertions make out a prima facie case of discrimination. In particular, the Union argues that the Grievor’s assertions establish that should he be required to work in Peterborough he will experience a disadvantage based on two prohibited grounds of discrimination: religion and family status. Accordingly, the Union argues that it has established an arguable case. [14] With respect to the balance of harm, the Union argues that if the Grievor were required to move from Ottawa to Peterborough, or commute daily from Ottawa to Peterborough, he would be unable to provide care to his parents and his religious freedoms would be unduly infringed. The Union also argues that the status quo is that the Grievor is working in Ottawa. Thus, the Union argues, the balance of harm favours granting the interim relief requested. [15] I am not persuaded by the Union’s arguments for the following reasons, many of which were advanced by the Employer. [16] First, it is important to note that the claim being advanced is one of adverse effect or constructive discrimination. Requiring the Grievor to work in Peterborough is not in itself discrimination on the basis of either religion or family status. Rather it is a neutral requirement of the Employer that appears to be rationally connected to the job, reasonable and bona fide. Even if this requirement did have an adverse effect on the Grievor based on religion or family status as asserted by the Union, there will be no breach of the Code, and therefore of the collective agreement, if the Grievor’s request to work permanently from Ottawa would constitute an undue hardship on the Employer. [17] In this way, this case differs from one cited by the Union: Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2009 CanLII 59458 (ON GSB). In that case, the grievor alleged harassment. If true, the allegations amounted to a breach of the collective agreement. That is, unlike this case, - 5 - there was no further factual issue that could have resulted in a finding of no breach even if the grievor’s presenting allegations were true. [18] In this case, even if the Grievor’s allegations amounted to a prima facie case of discrimination as asserted by the Union, shifting the burden to the Employer to establish that he could not be accommodated, any such issues of accommodation must be considered before it can be said that the Grievor has an arguable case that the collective agreement was breached. The Employer’s declaration provides particulars as to why it says the Grievor permanently working from Ottawa would mean that the Grievor was not doing the full job for which he is being paid and would otherwise constitute undue hardship on the employer. The Grievor’s declaration by contrast consists of the bald assertion that “based on the nature of my work duties, I can work in remote work locations without being situated in the City of Peterborough.” I have concerns about the sufficiency of this assertion and thus about concluding that the Union has established an arguable case. [19] Second, the record before me is that the Grievor has worked in Peterborough, while living in Ottawa, since 2005. The exception to this is the period from March 2014 until October 31, 2014 provided for by the MOU. That MOU is expressly without prejudice or precedent. It would be inimical to good labour relations to permit the Grievor to rely upon that document for the purposes of establishing the status quo. In any event, there is nothing in the record before me to establish that the Grievor’s needs will be any different after October 31, 2014 than they were prior to March 2014. The Grievor was, is and will continue to be a married Hindu man whose faith requires him to pray twice per day with his wife. Since at least 2012 both of the Grievor’s parents have resided with the Grievor and he has provided them with daily care. That is to say, the Grievor has apparently been able to live in Ottawa and work in Peterborough notwithstanding his religious or family obligations. In these circumstances it is far from clear that the bald assertion of an adverse effect is sufficient and that therefore that the Union has established an arguable case. [20] I have a further concern with respect to the claim of discrimination based on family status. The Union’s argument relies upon Canada (Attorney General) v. Johnstone, 2014 FCA 110, and Ontario Public Service Employees Union (Thompson) v. Ontario (Liquor Control Board of Ontario), 2012 CanLII 67351 (ON GSB). As argued by the Employer, Johnstone appears to hold that in order for an individual to establish a prima facie case of discrimination on the prohibited ground of family status from childcare obligations (and therefore, by analogy, from eldercare obligations) it must be established that the family member is under the care or supervision of the individual and that the obligation engages the individual’s legal obligation as opposed to personal choice. In this case, the Grievor’s declarations indicate that he provides certain types of care to his parents (ranging from assisting them in the washroom to shopping for them). They do not establish that his parents are unable to perform the activities in question and thus require the care; they do not establish that only the Grievor can provide this care; and they do not establish that the Grievor is under a legal obligation to provide this care. [21] Further, both Johnstone and Thompson appear to contemplate that as part of establishing a prima facie case of discrimination on the basis of family status, the individual must - 6 - demonstrate that he or she has made reasonable efforts to meet any such family status obligations through reasonable alternative solutions and that no such reasonable alternative solution is reasonably accessible. There is nothing in the record before me to establish that the Grievor has made any such efforts. While the Union asserts that this inquiry is properly undertaken only after the individual has otherwise established a prima facie case, when the burden of proving accommodation is not possible has shifted to the responding party, this appears to be at odds with the very cases upon which it relies for its argument. This gives rise to further concerns about whether the Union has established an arguable case at least with respect to its claim of discrimination on the basis of family status. [22] Third, to the extent that the Grievor experiences an adverse effect as a result of working in Peterborough and living in Ottawa, it is important to note that only the former is a required by the Employer. It is a matter of complete indifference to the Employer where the Grievor lives, provided he shows up for work. The Grievor has chosen to continue to live in Ottawa. There is nothing in the record to establish that his wife and his parents could not move with him to Peterborough. [23] Fourth, for similar reasons it is difficult to conclude that the balance of harm favours the Grievor. Indeed, on the record, it is not clear that the Grievor will suffer any substantial harm if he is required to work in Peterborough. He has done so for years while commuting from Ottawa, and for at least a year after his father started living with him, which invites the inference that he will not experience irreparable harm if he is required to continue to do so. [24] Fifth, the interim relief sought in this application is identical to the relief sought in the underlying grievance on the merits. Further, the assertions relied upon by the Grievor in support of his claim for interim relief are virtually identical to those he has provided as particulars in support of his claim on the merits. The Employer contests those assertions. In the hearing of the grievance itself, the Employer will be able to challenge the Grievor’s assertions, and thus the remedy claimed, through cross-examination and the calling of evidence. It would be odd if merely by repeating those assertions (some of which are little more than bald allegations) within the context of an interim application the Grievor could get the very relief he may ultimately be denied after a full hearing of his grievance. While there may be a case where that is an appropriate result, it would require compelling reasons to reach that conclusion. In this case, the reasons stated above point to the opposite conclusion. [25] Sixth, in his declaration Mr. Kapron indicates that the Employer is prepared to grant the Grievor leave without pay following the expiry of the MOU and until there is a decision on the merits. This suggests that if the Grievor were to take such a leave but ultimately succeed with his grievance, his losses would be in the form of loss of income and loss of dignity. Such a loss is not irreparable. Rather, it can be compensated in the form of damages. [26] For all of the foregoing reasons, the Union’s application for interim relief is denied. - 7 - [27] As a matter of record, I note that the Employer points out that section 48(12)(i) of the Labour Relations Act, 1995 empowers the Board only “to make interim orders concerning procedural matters”. The Employer argues the relief sought by the Union is not procedural and thus I have no jurisdiction to grant it pursuant to section 48(12)(i). Given my conclusions above I need not address this argument. Rather, assuming without deciding that I have such jurisdiction, I would not grant the relief for the reasons stated. Dated at Toronto, Ontario this 11th day of September 2014. Ian Anderson, Vice-Chair