Ontario (Liquor Control Board of Ontario) and O.L.B.E.U. (Robinson) (Re), 2006 OGSB minicounsel 28

Re Liquor Control Board of Ontario and Ontario Liquor Boards Employees' Union (Robinson)

[Indexed as: Ontario (Liquor Control Board of Ontario) and O.L.B.E.U. (Robinson) (Re)]

File No. 2004-4023 Ontario Crown Employees Grievance Settlement Board J.D. Carrier

Heard: January 12, 2006 Decision rendered: February 6, 2006

PRELIMINARY AWARD DECISION

In the case at hand, the Grievor, Ms. Christine Robinson, was transferred from her position as a Casual Customer Service Representative in the Employer's Huntsville LCBO Store to its Store in Dwight, Ontario. 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 marital status, constituted a violation of her rights pursuant to the Human Rights Code, R.S.O. 1990, c. H.19, of Ontario.

Here, the Employer moved to dismiss the grievance on the basis that the Grievor's transfer to Dwight from Huntsville represented the implementation of the terms of a memorandum of settlement of another grievance reached earlier between the Employer, the Union and the Grievor's spouse. It was the Employer's contention that:

1. the earlier settlement was binding upon the parties to it;
2. that the Union had carriage of the earlier matter and representation rights for the grievor there as well as the Grievor here; consequently, the Grievor here is bound by the settlement reached in the earlier grievance;
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 Grievor here were known at the time it was entered into.

On behalf of the Union, Mr. Larry Steinberg of the firm Koskie Minsky takes the position that neither the Union nor the employee him or herself can contract out of those human rights established or recognized 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 Grievor's rights 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 grievance by this Grievor's husband. I have set out below the entirety of the Agreed Statement of Facts and part, if not all, of the earlier settlement:

AGREED STATEMENT OF FACTS

"The Union and the Employer (collectively, "the Parties") agree to the following facts for the purpose of the Employer's preliminary objection in this Arbitration. The Parties agree that these facts are agreed to without prejudice to any position the Parties may take in the event this Arbitration proceeds to a hearing on the merits.

1. The Grievor is a Casual Customer Service Representative. The Grievor's husband, Grant Jennings, is a permanent full-time Customer Service 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. A decision was made to separate the Grievor and her husband, specifically to transfer Mr. Jennings to the Employer's store in Bracebridge.

2. In response to the transfer, Mr. Jennings filed a grievance objecting to the transfer on the grounds that it was unlawful discrimination as the decision was based on the fact he and the Grievor were married to each other. At Stage 3 of the grievance procedure, the grievance was settled. A Memorandum of Settlement ("The MoS") was entered into and executed by the Union on November 24, 2004 and by the Employer on December 6, 2004. A copy of the MoS is attached.

3. On January 17, 2005, the Grievor filed the present grievance alleging that her transfer, made pursuant to and in accordance with the MoS, was unlawful discrimination as the decision was based on the fact she and Mr. Jennings are married to each other."

and the Memorandum of Settlement states:

MEMORANDUM OF SETTLEMENT

"WHEREAS the Employer, the Union and the Grievor are desirous of settling this matter THEREFORE the Parties agree as follows:

1. The Union and the Grievor withdraw the Stage 2 grievances ... not to be refiled.

2. The Employer agrees to cancel the Grievor's lateral transfer from Store #106, Huntsville to Store #13_, Bracebridge that was to be effective Monday, November 22, 2004. In lieu the Grievor's spouse Christine (Robinson) Jennings will be transferred from Store #106 Huntsville to Store #550, Dwight, effective the first work week of Period 411 that being Monday, January 03, 2005. The Union and the Grievor agree that until such time that the transfer occurs, the Grievor cannot supervise his spouse as an Acting "A" Store Manager.

3. The Union 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. The Parties agree that this settlement is signed without precedent or prejudice to any other matter between the Employer and the Union, or without any admission of liability by the Employer"

The Submissions of Counsel and the Decision

Relevant provisions of the Ontario Human Rights Code are as follows:

Preamble

"Whereas recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed by the United Nations;

And Whereas it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province;

5(1) Every person has a right to equal treatment 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 disability. R.S.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 employment

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability. R.S.O. 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 U.F.C.W., Loc. 175 (Cooper) (2002), 105 L.A.C. (4th) 346 (Bendel)
2. Re Grey Bruce Health Services and O.P.S.E.U., Loc. 260 (Locking) (2003), 116 L.A.C. (4th) 161 (W.A. Marcotte)
3. Re Sudbury (City) and C.U.P.E., Loc. 207 (1965), 15 L.A.C. 403 (Reville)
4. Re Zehrs Markets and Retail Clerks Union, Loc. 1977 (1984), 14 L.A.C. (3d) 379 (Barton)
5. Re Stelco Inc. (Hilton Works) and U.S.W.A. (1989), 5 L.A.C. (4th) 284 (P. Haefling)
6. Re Air Liquide Ltd. and U.S.W.A., Loc. 6308 (Phillips) (1998), 77 L.A.C. (4th) 230 (R.L. Verity, Q.C.)
7. Re Cuddy Food Products and U.F.C.W., Locs. 175 & 633 (2003), 121 L.A.C. (4th) 56 (B. Etherington)
8. Re Continental Can Co. of Canada Ltd. and Graphic Arts International Union, Loc. 121 (1975), 10 L.A.C. (2d) 35 (J.F. Weatherill)
9. Re Air Canada and C.A.W., Loc. 2213 (Bourque) (2002), 107 L.A.C. (4th) 250 (M.K. Saltman)

On behalf of the Union Mr. Steinberg relied upon the following line of cases:

1. Ontario (Human Rights Commission) v Etobicoke (Borough), [1982] 1 S.C.R. 202
2. Ontario Human Rights Commission v. London Monenco Consultants Ltd. (1992), 9 O.R. (3d) 509, [1992] O.J. No. 1599 (QL) (C.A.)
3. Ontario (Human Rights Commission) v. Gaines Pet Foods Corp. (1993), 16 O.R. (3d) 290, [1993] O.J. No. 2973 (QL) (Div. Ct.)
4. O.P.S.E.U. v Ontario (Ministry of Community and Social Services), [1996] O.J. No. 608 (QL) (Div. Ct.)
5. Re Glengarry Industries/Chromalox Components and U.S.W.A., Loc. 6976 (1989), 3 L.A.C. (4th) 326 (Hinnegan)
6. Re Thunder Bay (City) and S.E.I.U., Loc. 268 (1992), 27 L.A.C. (4th) 194 (Joyce)
7. Re St. James-Assiniboia School Division No. 2 and St. James Assiniboia Teachers' Assn. (Appel) (2001), 95 L.A.C. (4th) 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' rights pursuant to the Code. The Union did not challenge the principles 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 written and not subjected to review or dilution at arbitration. However, on behalf of the Union, Mr. Steinberg argued that settlements which impact upon rights 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 U.F.C.W., Loc. 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).

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 grievance 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 rights of employees within the bargaining unit. 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 rights of individual employees protected by the Human Rights Code of Ontario. In the latter pages of its decision, the Supreme Court outlined the issue and its reasons as follows:

"A Further argument must be dealt with. The respondent in paragraph 38 of its factum, noting that the mandatory 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 statutorily-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 firefighting, 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, in my opinion to give it effect would be to permit the parties to contract out of the provisions of The Ontario Human Rights Code.

Although the Code contains no explicit restriction on such contracting out, it is nevertheless a public statute and it constitutes public policy in Ontario as appears from a reading of the Statute itself and as declared in the preamble. It is clear from the authorities, both 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 contrary to public policy."

Furthermore, not only can the Parties not contract away those rights 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 restrictive 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 rights pursuant to the Ontario Human Rights Code. The Court found that a restrictive condition within the agreement relating to 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 meaning 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 April of 1985 due to cancer, the restrictive 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 Appeal Book, leaves little doubt that Ms. Black's dismissal stemmed in large measure from her failure to comply with the terms of the restrictive condition, a condition which we have found to be discriminatory and in violation of her rights under the Code. It should be noted that although the second paragraph of the termination letter begins with the words "we agreed at the time (April 29, 1985) that your continued employment with Gaines", the record is clear that Ms. Black, at that time, simply agreed to do the best she could. Her acceptance of these conditions was to that extent qualified. Regardless, even if it could be said that she agreed to the restrictive condition, such agreement would be unenforceable: see Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, 132 D.L.R. (3d) 14.

Thus, we are satisfied that Ms. Black's termination was both directly and substantially linked to the imposition of the restrictive condition which we have found to be discriminatory."

In the case before me, it is clear that the settlement reached between the Parties concerning the grievance of Mr. Grant Jennings was arrived at specifically because of his spousal relationship with the Grievor here, Ms. Robinson. Implementation of that settlement directly resulted in the transfer of this Grievor from the Huntsville store to the store in Dwight. Prima facie, that is discriminatory treatment of Ms. Robinson based upon her marital status or relationship with Mr. Jennings. Premised on the principles enunciated by the Supreme Court of Canada in the Borough of Etobicoke 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 of Ms. Robinson from Huntsville to Dwight. It is unnecessary to determine whether or not the Union in executing the Memorandum of Settlement with the Employer and Mr. Jennings could also bind Ms. Robinson since that agreement, even if entered into by Ms. Robinson herself, would be void from the onset insofar as it might be found to violate her rights 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 marital 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 merits further comment. The first of those was a decision of Arbitrator M. Bendel in Re Sobeys and U.F.C.W., Loc. 175 (Cooper). In that case the grievor had been terminated due to an inability to resume work based on medical assessments following an accident. The termination was grieved and resulted in Minutes of Settlement which called for a payment to the grievor of termination pay in exchange for a withdrawal of the grievance. The employer carried out its part of the bargain; however the grievor did not deposit or cash the cheque he had received. Instead, a second grievance 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 grievor'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 critical observations [p. 350]:

"However, it is important to note that there is nothing on the face of the Minutes of Settlement to suggest any conflict with the Code. Arbitrators only rely 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 Arbitration and Other Forums: An Update" (2000), 8 C.L.E.L.I. 179, an article cited with approval by the Ontario Court of Appeal in Re Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Loc. 324 (judgment dated June 19, 2001 [reported 10 C.C.E.L. (3d) 290]; leave to appeal to the Supreme Court of Canada granted February 14, 2002), Professor Adell stated the following, at pages 195-6 and 197:

Even where the labour relations statute explicitly allows arbitrators to apply human rights legislation in resolving grievances, as in British Columbia and Ontario, the assumption now seems to prevail that this authority only extends to disputes that have some sort of anchor in the collective agreement."

Arbitrator's Bendel's reasoning was followed by Arbitrator W.A. Marcotte in Re Grey Bruce Health Services and O.P.S.E.U., Loc. 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 [pp. 183-84 L.A.C.]:

"However, it is important to note that there is nothing on the face of the Minutes of Settlement to suggest any conflict with the Code. Arbitrators only [page 184] rely 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 nothing on the face of the October 3, 2002 terms of resolution which can be said to be a violation of the grievor's rights under the Code and art. 3.01 of the collective agreement. Indeed, paragraphs 2A) and 3) of the resolution indicate, in clear fashion, that opportunity for employment in a suitable position with the Employer will be made available to the grievor upon her successful completion of the LMR program. Therefore, I do not find that the October 3, 2002 terms of resolution violate the grievor's rights under the Code or pursuant to art. 3.01 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 Grievor from one location to another, were premised on her spousal relationship with a co-worker and raised, in a prima facie manner, her rights pursuant to the Ontario Human Rights Code and the potential violation of those rights. Furthermore, the collective agreement in the case before me asserts in Article 2.1 (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.

In all the circumstances, it is my view that the Employer's motion to dismiss the grievance premised on the earlier settlement cannot succeed. The motion is, therefore, dismissed and the matter will proceed. I retain jurisdiction to deal with the merits of the matter in the ordinary course.