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Home My WebLink About2010-0007.Amurao.11-08-11 DecisionCommission de Crown Employees Grievance UqJOHPHQWGHVJULHIV Settlement Board GHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pO Fax (416) 326-1396 7pOpF GSB#2010-0007, 2010-0029 UNION#2010-0542-0010, 2010-0542-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Amurao) Union - and - The Crown in Right of Ontario (Ministry of Community and Social Services) Employer BEFOREVice-Chair Joseph D. Carrier FOR THE UNION Sheila Riddell Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYER Jennifer Richards Ministry of Government Services Labour Practice Group Counsel HEARINGAugust 3, 2011. - 2 - Decision [1]The Grievance before me alleges that Ms. Fidela Amurao, who had been employed for approximately three years as a Family Responsibility Officer with the Minister of Community and Social Services of Ontario, was terminated without just cause. [2] In a letter dated February 22, 2010, Ms. Nancy Liston, Director of Client Services outlined to Ms. Amurao the reasons for her dismissal. Those reasons identified inappropriate conduct inconsistent with her office including: 1.Using false pay stubs to secure a mortgage loan contrary to Ministry standards of conduct. 2.Inappropriate or dishonest use of a sick day. 3.Inappropriate use of emails and I.T. equipment for personal, non government business. 4.Equivocation in responding to questions during investigation. [3] Proceedings in this matter did not begin until August 3, 2011. In the meantime Ms. Amurao had filed a complaint with the Human Rights Commission concerning the manner of her dismissal. On November 5, 2010 the employer received a copy of a Decision regarding her Human Rights Complaint advising: 1. That The Human Rights Tribunal had accepted an Application from Ms. Amurao alleging that she had been discriminated against in respect to her employment and terminated contrary to the Human Rights Code and 2.7KDWWKH7ULEXQDOKDGGHWHUPLQHGWKDW³WKHDpplication is deferred pending the conclusion RI´WKHJULHYDQFHZKLFKKDVQRZFRPHon for arbitration before this Board. [4] Having received that Decision, the Employer recognized that the issues in the Human Rights Complaint and those before me, if not identical, at least significantly overlapped. - 3 - Accordingly, Counsel for the Employer brought forth the current motion that this Board, in DGMXGLFDWLQJ0V$PXUDR¶VWHUPLQDWLRQDVVXPH jurisdiction and take into evidence and consideration all elements pertaining to the *ULHYRU¶V+XPDQ5LJKWV&RPSODLQWLQWKHKRSHDQG expectation of avoiding the pitfalls which can result when two tribunals adjudicate upon essentially or largely the same issues. [5] I have not been asked by either party to defer proceedings here to those of the Human Rights Tribunal. Rather, the Employer asks simply that I assume jurisdiction to deal with all DVSHFWVRIWKH*ULHYRU¶VXQMXVWdismissal complaint and, in particular, any issues which might arise relevant to the Ontario Human Rights Code including any matters identified in Ms. $PXUDR¶VDSSOLFDWLRQWRWKDW7Uibunal. The Union does not oppose the Motion, rather it takes no SRVLWLRQIRURUDJDLQVWWKH(PSOR\HU¶VUHTXHVW BACKGROUND [6] There were two essentially identical grievances filed by Ms. Amurao, on March 1, 2010 each alleging that her termination constituted a violation of her Collective Agreement rights. Although neither specifically identifies Article 3 which prohibits discrimination, each does reference potential infringementRIULJKWVXQGHU³DQ\RWKHU$FW´and is, therefore, broad enough to include treatment she received which was allegedly in breach of the Human Rights Code. [7] The application to the Human Rights Tribunal alleges discrimination against Ms. Amurao based on race, place of origin, ethnic origin, ancestry and association which culminated in her being unjustly reprised and terminated from her job. There is little in the Human Rights application by way of particulars of discriminatory conduct except as to the manner in which the - 4 - employer investigated, suspended and finally terminated Ms. Amurao. It is clear that any such allegations could not be disregarded in the course of proceedings before me. My jurisdiction and that of this Grievance Settlement Board extends, at least, to ensuring that our decisions are not inconsistent with relevant employment legislation. THE DECISION [8] I have dealt with almost identical issues in two earlier matters before this Board. (See Re OPSEU (Barillari) and Ministry of Community and Social Services GSB #2006-1932 dated April 10, 2008 (Carrier) and Re OPSEU (Hussain) and Ministry of Community and Social Services GSB #2010-0031 dated April 6, 2011 ((Carrier)). I adopt and confirm the reasoning in those cases and conclude as in the Hussain Award at page 6 that: ³$VLQWKH%DULOODULFDVHWKH%RDUGZLOOEHREOLJHGWRFRQVLGHUWKH(PSOR\HU¶VFRQGXFW DQGWKH*ULHYRU¶VWHUPLQDWLRQLQWKHFRQWext of potential violations of the Human Rights Code. I conclude that this is an appropriaWHIRUXPWRDGGUHVVWKRVHLVVXHV´ [9] Further, since the Human Rights Tribunal has deferred its proceedings pending the results in the matter before this Board, I direct that this matter proceed in the ordinary course before the Grievance Settlement Board. if any, [10] The Union is directed to provide particulars of the Employer conduct, which is alleged to have been discriminatory and/or in any way a violation of the collective agreement or theOntario Human Rights Code. Those particulars shall set out the who, what, where, when and how the impugned employer conduct is alleged to have taken place. Failure to provide those - 5 - GHWDLOHGSDUWLFXODUVPD\LPSHGHWKHXQLRQ¶VULJKt to call evidence concerning matters which have not been so particularized. [11] At present, I will set no date as to when those particulars are due to be provided to Employer counsel. If the Parties are unable to determine that time frame themselves, either may contact me to prescribe an appropriate deadline. [12] I shall, in the meantime, remain seised of this issue in the event the Parties have any difficulty in its implementation. Of course, I also remain seised upon the merits which shall be scheduled to continue in accordance ZLWKWKH%RDUG¶VXVXDOSUDFWLFH th Dated at Toronto this 11 day of August 2011. Joseph D. Carrier, Vice-Chair