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HomeMy WebLinkAbout1993-0945.Ross.94-03-31 \ i'; (1 ( ,-;-, ,.(,.o;,...~'f.: ONTARIO EMPLOYES DE LA COURONNE ",.:j"; ~;- CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE CpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TORONTO, ONTARIO. M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (bNTARIO). MSG 1Z8 FACSIMILE /TELltCOPIE (416) 326-1396 945/93 IN THB HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Ross) Grievor - and - \ The Crown in Right of ontario (Ministry of Correctional services) Employer BEFORE: M. Gorsky Vice-Chairperson P. Klym Member 0 Clark Member FOR THE H. Simand UNION Counsel Cornish Advocated Barristers & Solicitors FOR THE G. Lee EMPLOYER Senior staff Relations Officer Ministry of Correctional services HEARING January 7, 1994 ~- - -,- ,~ --_. ---"..~---"'"'-- _._-~ c '" ,,~' 1 DEe I S ION The Grievor, Gail Ross, filed a gr1evance on April 22, 1993, the "statement .of gr1evance" be1ng as follows I grieve article A of the collective agreement and notwithstanding any other article related The "settlement desired", in the grievance was I be immediately accommodate [sicl under art1cle A. At the t1me the gr1evance was filed; Ms. Ross held the position of Supply Clerk 2. Article A, referred to in the grievance, as set lout in the collective agreement in forc~ at the time the grievance was filed, is as follows \ ARTICLE A - NO DISCRIMINATION/EMPLOYMENT' EQUITY A 1.1 There shall be no d1scr1minationpractised 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 1n section 10(1) of the Ontario Human Rights Gode ( OHRC) . 0 A. 1). 2 There shall be no discrimination or harassment practised by reason of an employee's membersh~p or activity in the Union A.2 It is recognized that 1n accordance with section 14 of the OHRC, the -Employer's employment equity program shall not be considered a contravention of this article. It was acknowledged that the portion of art. A which was said ~ to have been violated was art. A 1 1, and the portion of that article being relied upon relates to "discrimination practiced by ( ~ (' ("'I " , ~~, If} 2 reason of . . handicap, as defined in section 10(1) of the Ontario Human Rights Code (OHRC) " At the opening of the hearing, counsel for the Union clarified the position of the GrievQr, and the Board was informed that the Grievor, who was at all material times a diabetic, intended by the . grlevance to allege a failure on the part of the Employer to accommodate her disability when she was a Corrections Officer 2 at the Toronto Jail, who could not, as a result of her handicap, work night shifts This alleged failure to accommodate Ms. Ross' disability, caused her to apply for another job that would not require her to work night shifts - that position being the one that she occupied at the time of the filing of the grievance, whlch position paid substantially less than the amount she was earning as a co2. , After Ms. Simand had clarified the nature of the grievance, Mr. Lee, on behalf of the Employer, raised a preliminary objection based on the grievance having been allegedly filed beyond the time limits provided for ln the collective agreement At the commencement of his argument, however, he indicated that for the purpose of his application, he was limiting his sub~issions to the question of whether the provisions of art. A.1 1 could apply to the facts of this case, which allege a violation of that article in April of 1990, when Ms. Ross was interviewed for the position of Supply Clerk 2, which she wa~ subsequently awarded an4 continues to I -'- .._- - --.- - - - .- ~- -.- ----- - ------- ~~~~' C. \C1 . ~~'~ Si'" '.f:' 3 occupy, whereas, art. A was only in effect on June 15, 1990 under the provisions of Part D, art. 85 of the collective agreement between the parties in effect from January 1, 1989 to December 31, 1991. Mr. Lee argued that art. A 1.1 could not be relied upon on behalf of Ms. Ross as it was not 1n effect at the date of the alleged violation Submissions made on behalf of the Employer 1. An allege9 failure on the part of the Employer to accommodate Ms. Ross, which the Union regarded as a v10lation of the non- discrimination provision in art. A.l.1 (which was art A.I 1n Exhibit 9), in April of 1990, when she was a CO2, cannot amount to a failure to accommodate her in 1993 when she filed her grievance, at which time she held another position (Supply Clerk 2) with respect to which no claim for accomodation was raised. 2. Neither art. A, nor any article similar to it, was found in the collective agreement in existence when Ms Ross was interviewed for the Supply Clerk 2 position Exhibit 10 being the collective agreement between the parties from January 1, 1986 to December 31, 1988. / 3 Ms Ross was a Supply Clerk 2 when art. A commenced to operate, and there was no need to accommodate her in order that she .~ - -_._~-- --~ .......- -_._..._~,_.~ -'--'- ~.-.,'~_~.:x. =:="=T,,-.~.:',';::'.'_,~_ :~ ':. ----..:::- -'---.~- ~:::::-"'"::: -~.~.. '-- - .- - ,r-' (l't,;. { :J; 'i\ 4 could carry out her duties in that position as there was nothing about that position's duties and responsibilities that required accommodation 4. As the collective agreement did not contain art A when Ms. Ross was a C02, and because the collective agreement in force at that time was otherwise silent with respect to any duty to accommodate her diabetic condition, we were said to lack jurisdiction to deal with the grievance which alleges, in effect, that Ms Ross was discriminated aga1nst because of handicap when the Employer failed to accommodate her by assigning her only to day shifts. 5. Reference was made to Haladay, 94/78 (Swan). Reference was made to the statement of the Board, at pp. 3-4 of Haladay We should n9te that our jurisdiction is statutory only, and has two main branches. First, we are vested with jutisdiction to hear and determine disputes about the interpretation, application, administration or alleged contravention of the collective agreement; this jurisdiction ~rises under s.18 of the Crown Employees Collective Bargaining Act [now s 19]. Second, beyond that jurisdiction and independent of it, we have the jurisdiction set out in s.17(2) [now s. 18(2)] ... . We have no other authority tq intercede between the. parties; we do not have any inherent jurisdiction to do justice - " or what we may conceive to be justice - or to provide remedies, no matter how desperately a particular case may cry out for relief. The Board is a creature of the statute, and derives its jurisdiction solely from the statute. The only exception to that rule is that the parties may provide for certain matters in a collective agreement, and our jurisdiction is thus broadened to the --- ------ ~--- -~.._~--' ~ !~ ',(I; ~, . . s,~,., ~~, '" 5 extent that they have done so. Beyond this circumscribed jurisdiction, the Board's legal authority is non- existent, and any decision rendered beyond those limits would be a nullity and liable to be quashed before a . court. 6 It was Mr. Lee's position that the grievance seeks to amend the effective date for the operation of art. A.l 1 so as to have it affect events pr10r to June 15, 1990, when the article became effective 7. Reference was also made to Van Der Akker, 2542/87 (Fisher) In that case, the grievance stated that the grievor had been exposed to harassment by a member of management, the union's position being that art. 10 of the collective agreement entitled "Shift Schedules" applied to the case. On December 18, 19B7 the grievor's work location was changed without notice and, apparently as a result of the change, he became ill and dld not work. The grievor claimed that the change in the work assignment was a form of harassment and \ that he was entitled, because of this harassment, to receive full compensation for the shift that he missed due to his illness. At p. 2, the Board stated Similarly, there is no terminology with respect to "harassment" in the Collective Agreement and this allegation itself cannot form the basis of a grievance ( unless there is also a specific violation of the Collective Agreement upon which a grievance is based. .I - - __u -- _ __,-1~___ ( y-".'~-- ~~ ( , ',f{ ~.. :.. 6 8 Reference w~s made to Aubin, 1044/85 (Gandz). In that case the grievor grieved that he was 1mproperly denied an opportunity to work overtime pursuant to art. 13 of the agreement at that time ) The Board stated at p. 4 The Collective Agreement 1S completely silent on the quest10n of the allocat1on of overt1me and to suggest that there is any implied commitment to d.istribute it fairly and equitably would be to .substantially amend the agreement and tpis is clearly beyond the jurisdiction of this Board. ~n this, we follow the Board's established jurisprudence as reflected in Changoor [526/82] .9 Referenc~ was also made to Beintner, 1841/87, 1842/87 .( R. J Roberts'). In the Beintner case, the grievor, who was a member of the Roman Catholic faith, regarded Sunday as a holy day and believed' that no work should be done on that day. This bel1ef was one tha the grew up with in Bavaria, where the majority of the population was Roman Catholic and made a practice of observing Sunday 1n this manner. When he came to Canada 1n 19661 , he continued to hold the religious view that no work should be done on Sunday and continued to observe this practice in his own life. He said that this was one of the reasons that he began to work for his ministry. He had left a previous position where h~ was required to work on Sundays and took the government pos1t1on even though it involved a considerable drop in pay. The employer raised a preliminary objection that the Board lacked jurisdiction to enforce the Ontario Human Rights Code through arbitration as the grievor already had a remedy of filing -- .. ,. .. '~--"7'-'"'- ,", - -j! ( .pr ~~- '".. ~.T .- ~).~.,' '" -. 7 a complaint before the Human Rights Commission and it would be an error for the Board to afford him an alternative route to relief through the arbitration process. The Board stated at pp. 10-11 . where the claim is that a provis1on of the Collective Agreement violates a public policy or is illegal because it contravenes a statute, arbitrators have not hesitated to consider the statute and render their interpretation of it No one has ~ver doubted that in such a case "a board of arbitration or arbitrator is obligated to acknowledge that impact and refuse to enforce the offending provisions" Re Dennison Mines Limited and United steelworkers (1982), 5 L.A.C (3d) 19,28 (Adams) At pp. 15-17, the Board stated Counsel for the Union also submitted that, 1n any event, the general management r1ghts clause of section 18 (1) of the Crown Employees Collective Bargaining Act provided a basis for enforcing the Ministry's positive obligations under section 4 of tt).e Human R1ghts Code because management's right to schedule employees had to be exercised in accordance with the Human Rights Code In this regard, the Board was referred to section 46 (2) [now s 47(2)] of the Code, which essentially provides that in cases of conflict with conduct authorized or required under other statutes, the Code must prevail This submission must also be rejected. We have already lndicated in our review of the law that arbitrators have refused to permit parties to "cloak" a naked claim under a statute as a violatlon of i3- general provision of a collective agreement such as a ~anagement rights clause This serves the policy against enforcing at arbitration what are, in pith and substance, positive obligations under a comprehensive statutory scheme which provides its own mechanism for the investigation and adjudication of complaints. The Grievance Settlement Board took this position in, Re Aubin and Ministry of Correctional Services, supra, and we do not see that there is any conflict between Aubin and Re Singh and Ministry of Correctional services [240/79, (Eberts)] With respect to Singh, we note that the observations made by Professor Eberts (as she then was) regarding the ~-_._--- .......---- ~ (; t <:i' if' 8 perceived existence of a judicial policy 1n favour of more -- , .rather than fewer -- forums 1n which discrimination questions might be adjudicated were based I upon the decision of the Ontario Court of Appeal in Bhadauria v Seneca Colleqe (1980), 27 OR ( 2d) 142 The Bhadauria decision, however, was reversed by the Supreme Court of Canada, which concluded that the plaintiff did not have an independent tort action for discriminat10n which she could pursue ~n the courts but was required to follow the procedure laid out in t'he Human rights Code See Board .of Governors of Seneca ) College of Applied Arts and Technology v Bhadauria (1981) , 124 DLR (3d) 193 (S C.C ) 10. Mr. Lee reiterated that it was 1rrelevant when Ms. Ross became aware that she had a grievance based on an alleged duty to accommodate pursuant to art. A.1.1 This was 'because, even if Ms. Ross' grievance was filed in a timely manner, the substantive provision found in art A.1 1 did not apply to her in April of 1990, when she was a CO2 Even if there was a failure to accommodate Ms Ross in April of 1990, which was not admitted, there was no provision in the collective agreement that afforded her relief at that time. What Ms Ross seeks, at this time, 1S an order that she be returned to her previous position as a CO2 and that the Emplo~er pe ordered to accommodate her disability as a diabetic by assigning her only to the day shift Mr. Lee argued that the Un10n cannot rely on a substantive provis~on which did not exist at the time of the alleged violation, even if the grievance was filed in a timely fashion in 1993 when art. A 1.1 was in operation Although counsel for the Union relied on authority in support of her position tpat time did not / start to run for the purpose of '~.____.'___' _. '._ .~_'"_'~~-'-~'',_,''__''''-_'''_''''''''''''_.''' "...,- "..,,~~ .",",...,..n",. ~I'-:r":'t-.._ _ ~r~' ":<c""""' -. ~ f.\"t"-.' r'"'f"r;-:~ ~~J:Q"'7~1,1r"T~ ( ~ ':.. 9 filing a grievance until a grievor actually bel.ieves' that there has been a violation of tha collectiv~ agre~ment, for the purpose of the preliminary objection, Mr. Lee indicated that he was not relying on the alleged lack of timeliness ln the filing of the I / grlevance. Accordingly, it will be assumed, ln dea~ing with the submissions o~ the parties, that the grievance was filed ln a timely manner. Stibmissions Made on Behalf of the Union 1 Reference was made to the case of Alberta Human . Rights Commission v. Central Alberta Dairy Pool et al. (1990), 113 N.R. 161, at p. 196 (para) pI Turning to the question of reasonable .adcommodation, I a~opt the observations made by McIntyre, J. , at p. 556 and O'Malley [Ontario Human ih 9 ht s Commission and O'Malley v. Simpsons-Sears Ltd.; [1985] 2 S C.R 536; 64 N.R. 1,.61 ] with respect to Mrs O'Malley and find here to that the complainant was lawfully entitled to pursue the practice of .his religion and to be free of the compulsion to work on Monday, April 4, 1983 contrary to his \ religious beliefs. The onus lS upon the respondent employer to sh9W that it has made efforts to accommodate the religious beliefs of the complainant up to the pOlnt of undue hardship~ Relying on the Alberta Human Rights Commission case, it was submitted that once it was established that Ms. Ross suffered from a disability which had to be accomodated in order to permit her to carry out the duties and responsibilities of the position she occupied at that time, the El1lployer had a duty to. provide such r .,-~---.....-:.,":~",!, ~i .-- ... -.-. . ~ ._... . ....'. ~. . "'"'~.--,""'- -"'" --- ."..... -- - - - ...-'-," --. G't <.;.;,;.'i' " "k~": ,.,;';'; ~ '\ \ 10 accommodation unless it could demonstrate undue hardship IOn the I facts before us, it was submitted that the Grievor should not now be penalized because the Employer failed to carry out its duty to accommodate her disability at the time the need to do so had been \ brought to its attention. That time was, at the latest, when she applied for the Supply Clerk 2 position in April of 1990, it being indicated that evidence would be led to show that the Grievor had informed the representatives of the Employer of the reason why she was applying for the position, qnd that lt was known that she was a diabetic. 2. further submitted that there / continuing It was was a obligation on the part of the Employer to accommodate the Grievor after she was compelled by her handicap to apply for and accept her present position. It was submitted that awarding the clerical position she now occupies to the Grievor did not amount to a proper accommodation as the position pays approximately $10,000 a year less than she earned as a CO2. 3 It was also submitted that it was irrelev~nt that article A did not exist when the grievance was filed because the provisions of the Human Rights Code in effect at the time when the Employer was said to have failed in its duty to accommodate the Grievor contained a provision imposing a duty of accommodation on an employer. On April 18, 1988, section 17 of the Human Rights Code s.o 1986, c.64 was proclaimed, which is now s 17 -o.=---'-'---'---._"''''.__--~~__.~_......_._...,~....-~.....''"_ .- ..,..~.':..':~. ---- ~ ~';-'''.:::2J>o;,' tJ.',-" -C~~:._ .~~".... r.~..~.~_::~~:~~~~~:~.:rr.::~ -- --- f \ G~~ 11 \ 17.- ( 1 ) A right of a person under this Act 1S not infringed for the reason only' that the person 1S incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of a handicap ( 2 ) The Commission, aboard of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost; outside ) sources of funding, if any, and health and safety requirements, if any. ( 3 ) The Commission, a board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship This repealed previous section 16 ( 1 ) A right of a person under this Act is not infringed for the reason only, (a) that the person does not have access to premises, services, goods, facilities or accommodation because of handicap, or that the premises, serV1ces, goods, facilities or accommodat.ion lack the amenities that are appropriate for the person because of handicap; or (b) that the person is incapable of performing or ) fulfilling the essential duties Or requirements attending the exercise of the right because of handicap. .4 Counsel referred to the exerpt from Beintner at pp. 10-11 reproduced above On the other hand, where the claim is that a provision of the Collective Agreement violates a public policy or is illegal because it contravenes a statute., arbitrators have not hesitated to consider the statute and render their interpretation of it. No one has ever doubted that 1n such a case a board of arbitration or arbitrator is obliged to acknowledge that impact anq refuse to enforce the offending provisions. [Referring to Re Dennison Mines Limited and United Steelworkers (1982) 5 L.A.C. ( 3d) , 19,28 (Adams)]. / ( ~ '.' 12 5. Counsel also referred to what she regarded as the statement to the same effect in Aubin, 1044/85 ( supra) . 6. It was further submitted that even if article A did not exist in the collective agreement when the alleged duty to accommodate first arose, then the Employer was obliged to administer the \ provisions of the collective agreement with respect to scheduling and with respect to the exercise of its management rights in accordance with the existing provisions of the Human Rights Code 7. For the Employer to assign the Grievor, when she was a C02, to work night shifts, ~h~ch she was said to b~ unable to work without I adverse effects to her health because of her handicap, amounted to a violation of the Human Rights Code and it was required to demonstrate that accommodation could not be achieved without undue hardship to itself At the completion of the hearing counsel were request:ed to comment on the possible implications of Kimmel/Leaf, 1391/90 etc. (Kaplan) , although, in that case , the Board had jurisdiction to deal with the provisions of aTt. A. In the Kimmel/Leaf - case, the issue involved alleged discrimination based on the employer .. not using discretionary . . . leave in a reasonable manner, to allow [the grievorsl to meet ..- .. - - --- .--- ---=- --- --~-- . ~...., (,-" (:i::; . <', ~. ~ .. 13 religious obligations without suffering a loss of salary or vacation time." The argument raised by the grievors that might have some significance to the case before us relates to an alleged duty to accommodate However, this alleged duty arose in the context of an 1 argument that the exercise of discretion constituted. adverse impact discrimination contrary to article A of the collective agreement Kimmel/Leaf at p. 25. ( ~ At pp. 25-26 of that case, the Board stated ~ Adverse Impact Discrimination Contrary to Article A "Adverse impact discrimination" was described by Mr. -~ Justice McIntyre in Re Ontario Human Rights Commission et al. and Simpson-Sears Ltd. (1985) 23 D.L.R. (4th) 321 It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which w~ll applY equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive 90nditi6ns not imposed on other members of the workforce (at 332) . L Adverse impact- discrimination is concerned with impact, not intent, and in this case the court went on to find that consistent with the provisioris and intent of the Ontario Human Rights Code, there was, in the ,case of adverse impact discrimination, a duty to accommodate, "in other words, to take such steps as may be reasonable to accommodate without undue interference in the operation of the employer's business and without undue expense to the employer" (at 335) In the case of adverse impact discrimination the employer's discriminatory rule or policy need not be struck down Its application, however, may be subject to modif ication 1n order to eliminate the impact of the discrimination. -~...__.,.--_.. -.---- -. ..-- -.--........ ....,"'........-","":.=:.'...,........-<....,..""...,-' -' J:t. ..,.-o:_:~- ~..-t~_ _~ _::.'!:L!....,...:::::;-------.-..-.. (.'. c ~ ~. ...:;..:,,"" .. ,[It 14 At pp. 26-31, the Board stated In counsel's submission, the wording of Article A clearly indicated that the partles to the Collective Agreement intended to incorporate human rights concerns and the Ontario Human Rights Code itself into the Collective Agreement. The relevant sections of the Code provide 4. Every person has a right to equal treatm~nt with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap 10(1) A right of a person under Part I is infringed where a requirement, qualiflcation or factor exists that 1S not discrimination on a prohibited ground but that results in the exclusion, restrictlon or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 16, that to discrimlnate because of such ground is not an infringement of a right. C2 ) The Commission, a board of inquiry or a court shall not find that a requirement, qualification or factor 1S reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any Union counsel argued that there is a discernable trend at this Board, and among arbitrators generally, to pay heed to human rights concerns and human rights legislation; legislation which has been described as "quasi- constitutional" in nature. For instance, in Re Wentworth County Board of Education 14 L.A C ( 3<U 310 (Devlin) , the Board found that the employer had exercised its rights in a manner that was discriminatory and that denied the grievor equal treatment because of her physical handicap "In consequence, that right was --- -.-.- ~.~- . - ,- -~.~--_.. ..,,:~.-.,.. .. ,.:..L.:....;,.;T~~ . . .. '-. ".;~'"'7'-';'-''''''O'T::'"~,..,.,.~,.;;1 ~ { '\';.l>o 15 e?{ercised in a manner which is contrary to public policy ~s enunciated in the Human Rights Code. 1981 (at 325) And in Bousquet 541/90 (Gorsky) the Board'held "While it is not within the jurisdiction of a board of arbitration to enforce the provisions of the Code, it cannot ignore the general law of the land where there 1S a confl1ct between the collective agreement provisions and the relevant statutory provisions" (at 14). It is noteworthy that Bousquet was decided under the predecessor Collective Agreement, that 15 pr10r to the coming into force of Article A Counsel referred the Board to Re Rothmans. Benson & Hedges Inc. 10 L.A C (4th) 18 (R M Brown), where the union all~ged that the employer violated the collective agreement and the Human Rights Code by refusing to allow an 1njured employee to return to work because of an injury preventing that employee from performing some tasks In the course of his reasons for decision the arbitrator considered at some length the jurisdiction of a board of arbitration to apply the Code, and he concluded that the Board possessed such a jurisdiction where it was of the view that the collective agreement was in conflict with the Code (See also Re Brass Craft Canada. Ltd. 11 L.A.C. (3d) 236 (Roberts).) In counsel's viewj Article A introduced an important new element to the Collective Agreement, and it did so in a context well known to the parties, namely the developing nature of the duty to accommodate as articulated by Canadian courts and as adopted and applied by boards of labour arbitration. Counsel did not argue that Article A was a paramount provision; rather, in his submission, it was necessary to read Article A alongside the other provisions of the Collective Agreement. Read alongside Article 55, the accommodation requested by the union 1n this case was perfectly consistent with the Collective Agreement. Union counsel noted, however, that there might be other cases where greater accommodation could be asserted and should be ava11able Co~nseJ concluded his submissions with respect to his first argument by noting that there was no evidence of possible interference in the operational requirements of the Ministry by accommodating the grievors and with some I observations on the cost of accommodating religious beliefs in the Ontario publ,ic Service These observations were extrapolated from the evidence of Ms. ' Brown from the Ministry of Labour Based on that evidence, and a workforce of approximately 90,000 employees, counsel calculated a maximum annual liability to the province of approximately $2 5 million which I --...,..,,-.--. ....~~,..:;!:..~.~~~~~::..~..r..:.-.~.:f....-.:I;<.....;.\ 'Cf";r- ---->--_~_____~_,___ ___~ ~'":. ~_~.-<.~--..-i;:i.:C:~.:.:~ \ l-O:;;~~'.J'_r;::'~j . ."a._ C. ~.'" (''''CO . .. ~,~4 ~ ~ -'-~ wff 16 amounts to 1/22 of 1% of the province's $46 billion budget An expenditure of this kind did not constitute undue hftrdship on the part of the employer. In de~ling with. the subject of adverse impact discrimination, the Board stated, at pp 51-52 It has long been est~blish~d that arbitrators may use legislative enactments, such as the ontario Human Rights Code, to assist In the construction' of collective agreements (McLeod v. Egan (1974) 46 D.L R. (3d) 150) In the instant case, there is no issue of confI ict between a statute atid the collective agreement Article A does not, however, contain any express duty to accommodate to the point of undue hardship such as that found in section 10(2) of the Code. Nevertheless, such a duty can and must be inferred in this case in the same way that it has been inferred by the Supreme Court of Canada in .other cases such as Alberta Human Ri9hts Commission v. Central Alberta Dairy Pool (1990) 72 D.L.R. - (4th) 417 Not only is it the law of the land, but absent such a duty what would be the point of Article A? One can assume that this provision was intended to mean something, and the only way it can mean much is if the prohIbition on discrimination carries with it a remedy when such dili?crimination h~s been establ;i..~hed. In this regard, the Ontario Human Rights Code, sett:j..ng out the law and public policy In'Ontario provides an important aid to the interpretation of Article A (see also the Prea~ble to the ~). In the same way Canadian courts have repeatedly sanctioned a purposive approach to discrimination that broadlY,interprets human rights laws so as to eliminate discrimination and provide meaningful relief, Article A of the Collective Agreement should also be interpreted. ~n reaching this conclusion we are merely giving effect to the agreement reached ~y the parties In the instant case it is not necessary to make any findings with respect to our jurisdiction to enforce anything other than the terms and conditions of the Collective Agreement. One of the significant differences between the case before us and the Kimmel/Leaf case is that the substantive provisions of art. A which appl ied in Kimmel/Leaf do not apply in the case before ~.'__'..~. ..~_..".~~_ '__.~ _ __ '.T"~" "":i, '-=r~.'- ;'r' -- "--'-, .-,.... --r!' 7..,;,-,1 G~' ( _. ~.~.: . ~,l ':tI~t1 \.i.~ JI-=' :a 17 us. If the grievance was filed in a timely fashion, which 1.S a matter we do not presently have to decide, then the substantive provis10ns that apply to that grievance are those that applied when the facts that gave rise to the grievance arose in April of 1990, when Ms. Ross was appointed to her p~esent position If a grievor can file a timely grievance when she becomes aware that she has one, which is being assumed as a result of the position taken by Mr. Lee, then she cannot rely on the provisions of the collect1ve agreement current when the gr1.evance was filed which did not exist when the act complained of took place. The duty to accommodate, in the case before us, related to a duty to accommodate Ms. Ross as a co2 and not in her current position. 1 Counsel for the Union argued that the duty to accomodate was .a continuing one and existed when the grievance was filed, al1d hence art A 1 1 applied to the facts of this case. This 1S an intriguing argument, however its application to the facts of this case would be dependent on Ms Ross hav1ng rema1ned as a ~O2 . In Kimmel/Leaf, the Board noted, at p 52, that it was "merely giving effect to the agreement reached between the parties. " That is, the agreement whereby art. A was introduced into the agreement. Accordingly, it was not necessary for the Board to make any finding with respect to its jurisdiction to , ~- - -~--- -- -.....- - -- ~ - _.~- ---- ~~~- -. . . c ( ";r;...). ~ i": :- 18 enforce anything other than the terms and conditions of the collective agreement. In Kimmel ILeaf, the Board found the duty to accommodate had to be inferred because "absent such a duty what would be the point of article A? One can assume that this provision was intended to mean somethirig, and the only way it can mean much is if 'the prohibition of discrimlnationcarries with it a remedy when such discriminqtlon has been established." Counsel for the Union argued that even if Article A does not assist the Grievor, the jurisprudence of the Board, supported by non-Board jurisprudence, requires that the Employer administer the provisions of the collective agreement in a manner that does not confict with the requirements of the Human Rights Code, and that where this' is .the case, the Board should make appropriate orders to in~ure that actions of the Employer in administering the collective agreement conform to the requirements of the Code. r We are of the view that the collective agreement is not the same thing with or without art. A insofar as the application of the Human Rights Code under the collective agreement is concerned. Even though, prior to the introduction of art. A, the Board could not ignore the Human Rights Code; it is one thing for the Board to use the Code in such circumstances as an aid to interpretation, and to prevent a substantive provision of the collective agreement from - ~ ---.---.----.----- . . ~ fit ;1')"'0. ('- \ \.--" :.t'} ::> 19 being enforced contrary to the Human Rights Code., it 1S another thing to enforce the ~ 1n a situation where there is no proVision in the collective agreement of a substantive nature that is being administered contrary to the provisions of the Code. Discussion It 1S no longer poss1ble to dispute the jurisdiction of the Board to properly consider the meaning of the Human Rights Code, or any other statute, as an aid to the interpretation of a collective agreement. Inmost cases involving the issue before the Board, it is the union that relies upon a provision of the Cod,e 1n support of a submission that the employer be prohibited from administering a particular provision in the collective agreement contrary to the provisions of the Code and for an'! order requir.ing that the provision of the collective agreement be admini~tered in accordance with the provisions of the Code In the Beintner case, supra, the Board was dealing with a grievance that alleged a violation of the collect1ve agreement because the employer's .schedul ing practices. were allegedly carried out contrary to the provisions of th~ Human Rights CodeJ in that the grievor was ~equired to work Sundays and this proh1b1ted him from practising his religious observances ! 1 -~--~ - ~ .- "' "'-'''C''''' ...,,,1 (" ~~}'" (". (.'" \. ':(; ,.~ ~. 20 At p. 10 of Beintner, the Board noted, with approva 1 , the statement in Re Windsor Western Hospital Centre InGJ. and Ont~ Nurses' Association (1979), 24 L.A C. (2d) 35 (Ianpi), where "the board rejected an attempt by the un10n to 'cloak' as a violation of a prior practice regarding the calculation of vacation entitlement an alleged contravention of positive obligations under the Employment standards Act. The board said 'in these present circumstances . there are no provisions of the collective agreement 1n conflict with the Employment standards Act, 1974. , " . The Board, in Beintner, also referred, with approval, to Aubin (supra) , to the same effect The Board 1n Beintner also noted, at pp lOi11, that there must be a provision in a collective agreement that violates a public policy or is illegal because it contravenes a statute in order for arbitrators to consider the statute and render their interpretation of it. The Board also noted, at p 11, that the statute could be { utilized as an aid in interpretation of a collective agreement assisting in the meaning to be giveri to the terms of the contract, referring to Re Dennison Mines Limited and United Steelworkers (1982) , 5 L.A.C. ( 3d) 19,28 ( Adams) =.o-"="-.,-___.--=-_.....,..c,,..,'___--,,____...-.~~~.--~='''"'''''' - ---.. -'--'. ..- -~ - '-::,,':-'-'- ~._-~- 11 .:~~~~'::'..;~.?.!::-=;:r-.......c_...:___:::I ( r \ '>. ~; "'" ~ 21 The Board ( ibid. ) also noted the jurisdiction of a board to construe a statute when it is necessary to determine whether there ,) is a breach of a specific provision of a collective agreement, referring to Re Hayford 2000/86 (Roberts). The Board also noted (at pp. 11-12) the case where One or more provl.sions of a statute may be incorporated by reference into a collective agreement. It has been held that "[wlhere such l.S the case, it is within the jurisdl.ction of the arbitrator to interpret the statute." (citations .omitted) In the Kimmel/Leaf case, the Board was not faced with the difficulty that 'this panel of the Board encounters, because it noted that the provision of the Human Rights Code had been specifically incorporated by reference l.nto the collective agreement that affec~ed the grievances befor it. In Beintner, the Board found that absent some specific incorporation by reference, the provisions of the Code were not incorporated into the collective agreement (See Beintner at pp 12-15.) At p. 15 .of Beintner, the Board noted that there was no decision of the Grievance Settlement Board finding that the Code had been incorporated into the collective agreement, with particular reference being made to Singh and Aubin. - ,- I I --..--,. ._~----_.. ---,- -, I - --- ~.,..-."~~----!'"'l"':'-~-"""";'ii ----- (' ( "~ , ! /' -vi~~ l'j;: ,1;} .!'O 22 At P 16 of Beintner, the Board also rejected the union's submission (at p. 15) that . .. . in any event, the general management rights clause of section 18 (1) of the Crown Employees Collective Bargaining Act provided a basis for enforcing' the Ministry's positive obli~ations under section 4 of the Human Rights Code because management's right to schedule employees had to be exercised 1.n accordance with the Human Rights Code At p 16, the Board reiterated its position We have already ind:j.cated in our review of the law that arbitrators have refused to permit parties to "cloak" a naked claim under a statute as' a violation of a general provision of a collective agreement such as a management rights clause. This serves the policy against enforcing at arbitration what are, in pith and substance, positive obligations under a comprehensive statutory scheme which provides its own mechanism for the investigation and adjudication of complaints. The Board also noted that preVlOUS panels had taken this position and did not find that there was any conflict between Aubin and Singh ( supr a) . Although section 17 of the code was not proclaimed until April l8, 1988, after the grievance was filed in the Beintner case, this would not affect the results of the case before the Board, if section 4 is not in conflict with a provision in the collective agreement The only provision which section 4 1.S said to be 1.n conflict with is article 10 and the Board, in Beintner, found no such conflict. There is a difference between a provision in a collective agreement which, by its very t€rms, calls for a particular action _.~~., ... ...,,;..e..:::.:J'c=.:1-J: ~ !'_'-~~"'~.~ -"'''''.::::~'_-_.~ ------.- -==-::-~_._."":,~'__-,"-'_ ,'." ,-'> :7-'-'~' ~~:::..::.L.:l.::ri......'t''!''.y''7~".....'"}:....-..... 1..-....."'. Pl,'. ;' .. _ -,', . .-,~7.'\~.....K I ( .~ "- ~ ,-'~ ,---~ 23 by the employer that 1S in conflict with a provision of the Human Rights Code and a provision such as art. 10 of the collective agreement that deals with shift scheduling and is not, on its face, in conflict with any provision of the Code. There was no suggestion that the Employer, in the case before us, waslnot engaged in a genuine exercise of shift scheduling, nor was it suggested that it was engaged in the deliberate bad faith exercise of its right to schedule shifts. Cf Bousquet (supra) ) I We conclude, as did the board in Kimmel/Leaf, that the introduction of article A effected a significant change in that the wording of that article indicated that the parties intended to incorporate human rights concer-ns and the Ontario Human Rights Code into the collective agreement. This would appear to have been a response to such cases as Aubin and Beintner. In the circumstances, and for all of the above reasons, we find that article A.l.l does not apply to this grievance. If the provisions of the Code had been incorporated into the relevant collective agreement, our decision on the preliminary issue might have been different. We also find, even if the facts necessary to establisl1 that Ms Ross may have been discriminated against under the Human Rights { I ~ because of her handicap existed, that there 1S no provision in \. --_.~=.-,-,,-,--==-_....,.-,--,---._..-._. . --. __ _-"'-"'-~ ~ _:....l':.....- ---''--- :.~____ _----'<-,---.::.::.;.,.:"...:....~. ~--=-~~~:.::__~_.---'---h:__ _ _,-_r~_ --:.; ..r....~i~~ -- -- ----- ., ( 9]- l!.-o '~ 24 the relevant collective agreement that conflicts with the provisions of the Code so as to enable us to assume jurisdiction based on a conflict with the provisions of the ~. Accordingly, .. and for the above reasons, the grievance is dismissed. We would add that, for the purpose of deciding the preliminary motion only, the parties agreed that we should assume certain facts, for example, that the Grievor had a disability that would require accomodation as a co2 by aSSl.gnl.ng her only to the day shift, and that the Employer was aware that the Grievor applied \ for her present position of Supply Clerk 2 because her physl.cal condition did not permit her to work the night .shift. In the circumstances, it was unnecessary for us to decide any of the factual issues that might have arisen on an adjudication of the merits. Dated at Toronto this 31st day of March, 1994 Ii ~~ A,. L- 2 M. Gorsky - Vice-Chairperson- f r1 t!tr~ \ , PKlym Member a~ ~ I D. Clark - Member ! ____ __._~ __~~~~~-..t,~..::.:..:......~~~~-~,,,-,--,,, "--r'~'--;---"':--, ._.-___~. ;__u....._. .",,-, "--"'!....r-~.1f:1 . u7"~~;7:T.;;~;-:'. ~_-=-=.==.:J:~~~:/