HomeMy WebLinkAbout2004-4023.Robinson.06-02-06 Decision
Crown Employees Commission de Nj
Grievance Settlement reglement des griefs
Board des employes de la
Couronne
~
Suite 600 Bureau 600 Ontario
180 Dundas Sl. West 180 rue Dundas Ouest
Toronto Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8
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GSB# 2004-4023
UNION# OLB025/05
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontano LIqUor Boards Employees' Umon
(RobInson) Union
- and -
The Crown In RIght of Ontano
(LIqUor Control Board of Ontano) Employer
BEFORE Joseph D Carner Vice-Chair
FOR THE UNION Larry SteInberg
Koskie Minsky LLP
BarrIsters and SOlICItorS
FOR THE EMPLOYER Gordon FItzgerald
Counsel
LIqUor Control Board of Ontano
HEARING January 12,2006
2
DeCISIon
In the case at hand, the Gnevor Ms ChnstIne RobInson, was transferred from her posItIOn as a
Casual Customer ServIce RepresentatIve In the Employer's HuntsvIlle LCBO Store to ItS Store In
DWIght, Ontano Her complaInt IS premIsed on the fact that the basIs for her transfer from
HuntsvIlle to DWIght was her relatIOnshIp as spouse to one of her co-workers In the HuntsvIlle
Store She alleges that the transfer whIch was based upon her mantal status, constItuted a
vIOlatIOn of her nghts pursuant to the Human Rights Code of Ontano
Here, the Employer moved to dIsmIss the gnevance on the basIs that the Gnevor's transfer to
DWIght from HuntsvIlle represented the ImplementatIOn of the terms of a memorandum of
settlement of another gnevance reached earlIer between the Employer the Umon and the
Gnevor's spouse It was the Employer's contentIOn that
1 the earlIer settlement was bIndIng upon the partIes to It;
2 that the Umon had carrIage of the earlIer matter and representatIOn nghts for the gnevor there
as well as the Gnevor here consequently the Gnevor here IS bound by the settlement
reached In the earlIer gnevance
3 a deal IS a deal and It would set a poor precedent for labour relatIOns purposes to set aSIde the
terms of that settlement when the consequences to the Gnevor here were known at the tIme It
was entered Into
On behalf of the Umon, Mr Larry SteInberg of the firm Koskie Minsky takes the posItIOn that
neIther the Umon nor the employee hIm or herself can contract out of those human nghts
establIshed or recogmzed by the Human Rights Code AccordIngly whIle the settlement mIght
otherwIse be valId, It may be proven vOId If It constItutes a vIOlatIOn of the Human RIghts Code
The settlement IS, therefore, subJect to reVIew Insofar as It may constItute a vIOlatIOn of the
3
Gnevor's nghts pursuant to the Human RIghts Code On the other hand, If not a vIOlatIOn, the
settlement would govern.
The Details
At the InCeptIOn of theIr respectIve presentatIOns the PartIes Introduced an Agreed Statement of
Facts as well as a copy of the settlement document whIch resolved the earlIer gnevance by thIS
Gnevor's husband. I have set out below the entIrety of the Agreed Statement of Facts and part, If
not all, of the earlIer settlement
4.GREED '\TATEMEVTOF F4.CT'\
'The [Tnion and the Emplover (collectiveh "the Parties") agree to thefollowingfactsfor the
purpose of the Emplover's preliminan objection in this 4.rbitration. The Parties agree that these
facts are agreed to without prejudice to an" position the Parties mm, take in the event this
4.rbitration proceeds to a hearing on the merits.
1 The Grievor is a Casual Customer ,,'ervice Representative. The Grievor's husband, Grant Jennings, is
a permanent fit/I-time Customer ,,'ervice Representative. In late 2004 it came to the attention of senior
management that the Grievor and her husband were both working in the same store in Huntsville. 4.
decision was made to separate the Grievor and her husband, specificalh to transfer AIr Jennings to
the Emplover's store in Bracebridge.
2 In response to the transfer AIr Jennings filed a grievance objecting to the transfer on the grounds that
it was unlawfit/ discrimination as the decision was based on the fact he and the Grievor were married
to each other 4.t '\tage 3 of the grievance procedure the grievance was settled. 4. Aiemorandum of
'\ettlement ("The AioS") was entered into and executed h" the [Tnion on "vovemher 24 2004 and h" the
Emplover on Decemher 6 2004 4. cop" of the AloS is attached.
3 On Januan 17 2005 the Grievor filed the present grievance alleging that her transfer made pursuant
to and in accordance with the AioS, was unlml1ul discrimination as the decision was hased on the fact
she and Air Jennings are married to each other"
and the Memorandum of Settlement states
MEAiOR4.SD[Jl.IOF "'ETTLEAiEST
WHEREAS the Emplover the [Tnion and the Grievor are desirous of settling this matter
THEREFORE the Parties agree as follows.
1 The [Tnion and the Grievor withdraw the ,,'tage 2 grievances not to be refiled.
2 The Emplover agrees to cancel the Grievor's lateral transfer from '\tore # 1 06 Huntsville to
'\tore #13 _ Bracehridge that was to he effective Aionda" "vovemher 22 2004 In lieu the
Grievor's SlJouse Christine (Rohinson) Jenninszs will he transferred from Store #106
Huntsville to Store #550, Dwiszht, effective the first work week of Period 411 that heinsz
AiondaL Januan 03, 2005. The [nion and the Grievor aszree that until such time that the
transfer occurs, the Grievor cannot sUlJervise his SlJouse as an Actinsz '~4." Store Aianaszer
3 The [Tn ion as the Grievor's agent and on its own behalf accepts this settlement as constituting
a complete and final settlement of all matters raised in the grievance or matters that could
have been raised in said grievances
4
4 The Parties agree that this settlement is signed without precedent or prejudice to mn other
matter hetween the Emplover and the [Tnion, or without mn admission of liahilin h" the
Emplover"
The Submissions of Counsel and the Decision
Relevant provIsIOns of the Ontano Human Rights Code are as follows
Preamhle
Whereas recognition of the inherent dignin and the equal and inalienahle rights of all memhers of
the human famih is the foundation of freedom, justice and peace in the world and is in accord with
the [Tniversal Declaration of Human Rights as proclaimed h" the [Tnited "vations,
4nd Tf71ereas it is puhlic polic" in Ontario to recognize the dignin and worth of even person and to
provide for equal rights and opportunities without discrimination that is contran to law and hm'ing
as its aim the creation of a climate of understanding and mutual respect for the dignin and worth of
each person so that each person feels a part of the communin and able to contribute fitlh to the
development and well-being of the conll1zunin and the Province
5 (1) Even person has a right to equal treatment with respect to emplovment without discrimination
because of race, ancestr" place of origin, colour ethnic origin, citizenship creed, sex, sexual
orientation, age, record of offences, marital status,famih status or disabilin R.,"'.O 1990
c.H 19 s.5(1) 1999 c.6 s.28(5) 2001 c.32 s.27(1) 2005 c.5 s.32(5)
Harassment in emplovment
(2) Even person who is an emplovee has a right to freedom from harassment in the workplace b"
the emplover or agent of the emplover or b" another emplovee because of race, ancestn place of
origin, colour ethnic origin, citizenship creed, age record of offences, marital status, famih status
or disabilin RSO 1990 c.H 19 s.5(2) 1999 c.6 s.28(6) 2001 c.32 s.27(1) 2005 c.5
s.32(6)
In support of ItS motIOn the Employer counsel Mr Gordon FItzgerald referred to the folloWIng
cases
1 Re Sobeys and UF C W Local 175 (Cooper) (2002) 105 LAC (il) 346
(Bendel)
2 Re Grey Bruce Health Services and o.p SE. U Local 260 (Locking)
(2003) 116 LAC (ih) 161 (WA. Marcotte)
3 Re C UP.E. Local 207 and City of Sudbury (1965) 15 L.A. C
403 (Reville)
4 Re Zehrs Markets and Retail Clerks Union, Local 19 77 (1984) 14 L.A. C
(3d) 379 (Barton)
5 Re Stelco Inc (Hilton Works) and US WA. (1989) 5 L.A.C (ih) 284 (P
Haejling)
6 Re Air Liquide Ltd and US WA. Local 6308 (Phillips) (1998) 77 L.A.C
(ih) 230 (R. L. Verity Q C)
7 Re Cuddy Food Products and UFC W Locals 175 & 633 (2003) 121
L.A.C (il) 56 (B Etherington)
8 Re Continental Can Co of Canada Ltd and Graphic Arts International
Union, Local 121 (1975) 10 L.A.C (2n(~ 35 (J F Weatherill)
5
9 Re Air Canada and C.A. W Local 2213 (Bourque) (2002) 107 L.A.C (4th)
250 (MK. Saltman)
On behalf of the Umon Mr SteInberg relIed upon the folloWIng lIne of cases
1 Re Ontario (Human Rights Commission) v Etobicoke (Borough) [1982J 1
S.C.R. 202
2 Re Ontario Human Rights Commission v London Monenco Consultants
Ltd (1992) 9 OR. (3d) 509 (C.A.) [1992J OJ No 1599
3 Re Ontario (Human Rights Commission) v Gaines Pet Foods Corp
(1993) 16 OR. (3d) 290 [1993J OJ No 2973
4 Re Ontario Public Service Employees Union v Ontario (MinistlY of
Community and Social Services) [1996J OJ No 608 (Div Ct.)
5 Re Glengarry Industries Chromalox Components and United
Steehwrkers, Local 6976 (1989) 3 L.A.C (lh) 326 (Hinnegan)
6 Re Thunder Bay (City) and S.E.I U LocaI268(1992) 27 L.A.C (ll) 194
(Joyce)
7 Re St. James-Assiniboia School Division No 2 and St. James Assiniboia
Teachers' Association (2001) 95 L.A.C (lh) 262 (Graham)
Of those cases submItted on behalf of the Employer only re Sobeys and the Grey Bruce Health
ServIces cases dealt specIfically WIth the Impact of the Human RIghts Code wIth respect to
settlements InvolvIng employees' nghts pursuant to the Code The Umon dId not challenge the
pnncIples espoused In the other cases cIted by the Employer to the effect that settlements of
Issues reached by the PartIes to a collectIve agreement as a general proposItIOn, ought to be
enforced as they are wntten and not subJected to reVIew or dIlutIOn at arbItratIOn. However on
behalf of the Umon, Mr SteInberg argued that settlements whIch Impact upon nghts protected by
the Code must be treated dIfferently Furthermore, those two cases,whIch cIte and refer to the
Human RIghts Code are easIly dIstIngUIshable from the matter at hand (in thIS regard, see re
Sobeys and UF.C.W., Local 175 (Cooper) as well as re Grey Bruce Health ServIces and
O.P.S.E.U, Loc. 260 (LockIng) both of whIch are cIted above)
6
I have consIdered the eVIdence here and the submIssIOns made by counsel and am of the VIew
that the Employer's motIOn to dIsmIss the gnevance cannot be sustaIned. There IS no doubt and I
support the proposItIOn that arbItrators are and should be loathe to Interfere wIth agreements and
settlements reached by the PartIes WIthIn the labour relatIOns context. That IS so even where the
terms of the partIcular document Impact upon and alter the collectIve agreement nghts of
employees wIthIn the bargaInIng umt. On the other hand, the Supreme Court of Canada In the
Borough of EtobIcoke case (supra) made It qUIte clear that the PartIes were not at lIberty to
contract out of the legIslated nghts of IndIVIdual employees protected by the Human Rights Code
of Ontano In the latter pages of ItS decIsIOn, the Supreme Court outlIned the Issue and ItS
reasons as follows
"4. Further argument must he dealt with. The respondent in paragraph 38 of its factum, noting
that the mandaton retirement had been agreed upon in the collective agreement with the union
representing the appellants, submitted.
It is submitted that where the parties engage in the statutorilv-required bargaining, and as a result
thereof agree, in good faith, on a standard retirement age based, in part, on the particular rigours
and demands of the job of fire-fighting, then the resulting qualification and requirement must be
considered to be "bona fide" in the absence of evidence that the limitation was inserted for an
ulterior purpose
While this submission is that the condition, being in a collective agreement, should be considered
a bona fide occupational qualification and requirement, inl1J1, opinion to give it effect would be to
permit the parties to contract out of the provisions of The Ontario Human Rights Code
4.lthough the Code contains no explicit restriction on such contracting out, it is nevertheless a
puhlic statute and it constitutes puhlic polic," in Ontario as appears from a reading of the 'ltatute
itself and as declared in the preamhle It is clear from the authorities, hoth in Canada and in
England, that parties are not competent to contract themselves out of the provisions of such
enactments and that contracts having such effect are void, as contran to puhlic polic," "
Furthermore not only can the PartIes not contract away those nghts of IndIVIdual employees
protected by the Human RIghts Code neIther can the employee hIm or herself do so In the
GaInes Pet Foods CorporatIOn case (supra) the DIvIsIOnal Court, folloWIng the precedent set by
the Supreme Court of Canada In the Borough of EtobIcoke case found that a restnctIve condItIOn
contaIned In a settlement document whIch had been agreed to by the employee herself was
unenforceable In as much as It undermIned the employee's nghts pursuant to the Ontano Human
Rights Code The Court found that a restnctIve condItIOn wIthIn the agreement relatIng to
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reqUIrements regardIng the employee's future attendance had been placed In the agreement and
arose dIrectly from a recent hIstOry of absence due to her dIsabIlIty There was no dIspute that
the cancer from whIch the employee suffered constItuted a handIcap wIthIn the meamng of
sectIOn 4( 1) of the Human RIghts Code Further the Court found that "but for Ms Black's
absence from November of 1984 to Apnl of 1985 due to cancer the restnctIve condItIOn would
not have been Imposed upon her" At page 3 of the QUIck Law decIsIOn provIded to me, the
Court reasoned as follows
"The letter of termination, found at tab 6 of the 4ppeal Book, leaves little doubt that ids. Black's
dismissal stemmed in large measure from her failure to comph with the terms of the restrictive
condition, a condition which we have found to he discriminaton and in violation of her rights
under the Code.
It should he noted that although the second paragraph of the termination letter hegins with the
words "we agreed at the time ~4pril 29 1985) that vour continued emplovment with Gaines" the
record is clear that Als. Black, at that time simph agreed to do the hest she could. Her
acceptance of these conditions was to that extent qualified. Reszardless, even ifit could he said
that she aszreed to the restrictive condition, such aszreement would he unenforceahle. see Ontario
(Human Rights Commission) v Etohicoke (Borough) [1982J 1 ').CR. 202 132 D.L.R. (3d) 14
Thus, we are satisfied that Als. Black's termination was hoth directh and suhstantialh linked to
the imposition of the restrictive condition which we have found to he discriminaton "
In the case before me, It IS clear that the settlement reached between the PartIes concernIng the
gnevance ofMr Grant Jenmngs was arrIved at specIfically because of hIS spousal relatIOnshIp
WIth the Gnevor here, Ms RobInson. ImplementatIOn of that settlement dIrectly resulted In the
transfer of thIS Gnevor from the HuntsvIlle store to the store In DWIght. Pnma faCIe, that IS
dISCnmInatory treatment ofMs RobInson based upon her mantal status or relatIOnshIp WIth Mr
J enmngs PremIsed on the pnncIples enuncIated by the Supreme Court of Canada In the
Borough ofEtobIcoke case and by the DIvISIOnal Court In the GaInes Pet Food case the
Memorandum of Settlement does not constItute a bar to the InqUIry Into the legItImacy of the
transfer ofMs RobInson from HuntsvIlle to DWIght. It IS unnecessary to determIne whether or
not the Umon In executIng the Memorandum of Settlement WIth the Employer and Mr Jenmngs
could also bInd Ms RobInson SInce that agreement, even If entered Into by Ms RobInson
8
herself, would be vOId from the onset Insofar as It mIght be found to vIOlate her nghts pursuant
to the Code
It IS unnecessary at thIS stage to determIne whether or not the case falls wIthIn any of the
exceptIOns outlIned In the Code wIth respect to practIces or polIcIes whIch are bona fide
qualIficatIOns affectIng mantal status and the lIke On the other hand, that argument advanced
by Mr Fitzgerald respectIng those two decIsIOns In whIch It was found that the Human Rights
Code dId not nullIfy agreements reached by the PartIes ments further comment. The first of
those was a decIsIOn of ArbItrator M. Bendel In re Sobeys and UF.C.W., Local 175 (Cooper) In
that case the gnevor had been termInated due to an InabIlIty to resume work based on medIcal
assessments folloWIng an accIdent. The termInatIOn was gneved and resulted In Minutes of
Settlement whIch called for a payment to the gnevor of termInatIOn pay In exchange for a
wIthdrawal of the gnevance The employer carned out ItS part of the bargaIn, however the
gnevor dId not deposIt or cash the cheque he had receIved. Instead, a second gnevance was filed
agaIn allegIng unJust termInatIOn but now based on dIsabIlIty wIth reference to the Human Rights
Code In dealIng wIth the employer's prelImInary obJectIOn to the effect that the gnevor's
termInatIOn had been settled In an earlIer agreement, Mr Bendel was faced wIth the questIOn as
to whether or not the settlement was InvalIdated by the Human RIghts Code. In the course of
findIng that the settlement before hIm was not vOId through operatIOn of the Code, ArbItrator
Bendel made the folloWIng cntIcal observatIOns
"However it is important to note that there is nothing on the face of the Alinutes of Settlement to
suggest mn conflict with the Code 4rhitrators onh reh on the external statute where the
collective agreement or settlement makes explicit provision for something that is inconsistent with
the statute. In "Jurisdictional Overlap Between 4rbitration and Other Forums 4n [pdate"
(2000) 8 CL.EL.l 179 an article cited with approval b" the Ontario Court of 4ppeal in Re
Parn ,,'ound (District) ,,'ocial ,,'ervices 4dministration Board v o.p ,,'.E [ Local 324 (judgment
dated June 19 2001 [reported 10 C CEL. (3d) 290J leave to appeal to the ,,'upreme Court of
Canada granted Februan 14 2002) Professor 4dell stated the following, at pages 195-6 and
197
9
Even where the lahour relations statute explicith allows arhitrators to apph human rights
legislation in resolving grievances, as in British Columhia and Ontario the assumption now
seems to prevail that this authorin onh extends to disputes that have some sort of anchor in the
collective agreement. "
ArbItrator's Bendel's reasomng was followed by ArbItrator W.A. Marcotte In Re Grey Bruce
Health ServIces and O.P.S.E.U, Local 260 (LockIng) At page 16 of the QUIck Law Report
provIded to me, ArbItrator Marcotte determIned that the Code dId not Impugn the terms of the
agreement before hIm for the folloWIng reasons
"However it is imlJortant to note that there is nothinsz on the face of the Alinutes of Settlement to
suszszest mn conflict with the Code. 4rhitrators onh [page 184J reh on the external statute where
the collective agreement or settlement makes explicit provision for something that is inconsistent
with the statute
In the instant case there is nothinsz on the face of the Octoher 3, 2002 terms of resolution which
can he said to he a violation of the szrievor's riszhts under the Code and art. 301 of the collective
agreement. Indeed, paragraphs 2A) and 3) of the resolution indicate in clear fashion, that
opportunin for emplovment in a suitahle position with the Emplover will he made availahle to the
grievor upon her successful completion of the LAiR program. Therefore 1 do not find that the
October 3 2002 terms of resolution violate the grievor's rights under the Code or pursuant to art.
301 of the collective agreement."
The facts before me and the Minutes of Settlement are clearly dIstIngUIshable from those whIch
were before ArbItrator Bendel In the Sobeys case and ArbItrator Marcotte In the Grey Bruce
Health ServIces cases Here as I have earlIer found, the terms of the settlement Itself, whIch
stIpulated the transfer of thIS Gnevor from one locatIOn to another were premIsed on her spousal
relatIOnshIp wIth a co-worker and raised, In a pnma facIe manner her nghts pursuant to the
Ontano Human Rights Code and the potentIal vIOlatIOn of those nghts Furthermore, the
collectIve agreement In the case before me asserts In ArtIcle 2 l(b) that "there shall be no
discrimination practiced by reason of marital status as defined in the Ontario Human Rights
Code" AccordIngly the dIspute has an explIcIt anchor or "landIng pad" In the collectIve
agreement, and, the settlement on Its face suggests a term or terms whIch are InCOnsIstent WIth
the Human RIghts Code
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In all the CIrcumstances, It IS my VIew that the Employer's motIon to dIsmISS the gnevance
premIsed on the earlIer settlement cannot succeed. The motIOn IS, therefore, dIsmIssed and the
matter wIll proceed. I retaIn JunsdIctIon to deal wIth the ments of the matter III the ordInary
course
DATED at Toronto thIS 6th day of February 2006