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

BEFORE

Joseph D. Carrier

Vice-Chair

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

HEARING

August 3, 2011.

Decision

1The 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.

2In 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.

3Proceedings 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. That the Tribunal had determined that “the application is deferred pending the conclusion of ” the grievance which has now come on for arbitration before this Board.

4Having 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. Accordingly, Counsel for the Employer brought forth the current motion that this Board, in adjudicating Ms. Amurao’s termination, assume jurisdiction and take into evidence and consideration all elements pertaining to the Grievor’s Human Rights Complaint in the hope and expectation of avoiding the pitfalls which can result when two tribunals adjudicate upon essentially or largely the same issues.

5I 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 aspects of the Grievor’s unjust dismissal complaint and, in particular, any issues which might arise relevant to the Ontario Human Rights Code including any matters identified in Ms. Amurao’s application to that Tribunal. The Union does not oppose the Motion, rather it takes no position for or against the Employer’s request.

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 infringement of rights under “any other Act” and is, therefore, broad enough to include treatment she received which was allegedly in breach of the Human Rights Code.

7The 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 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:

“As in the Barillari case, the Board will be obliged to consider the Employer’s conduct and the Grievor’s termination in the context of potential violations of the Human Rights Code.

I conclude that this is an appropriate forum to address those issues.”

9Further, 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.

10The Union is directed to provide particulars of the Employer conduct, if any, which is alleged to have been discriminatory and/or in any way a violation of the collective agreement or the Ontario 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 detailed particulars may impede the union’s right to call evidence concerning matters which have not been so particularized.

11At 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.

12I 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 with the Board’s usual practice.