GSB#2010-0031

UNION#2010-0542-0008

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Hussain)

Union

• and -

The Crown in Right of Ontario (Ministry of Community and Social Services)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Jane Letton Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Benjamin Parry & Jamie Kneen Ministry of Government Services Labour Practice Group Counsel

HEARING

March 31, 2011.

Decision

1The Grievance before me alleges that Mr. Faisal Hussain, who had been employed for approximately eight 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 Mr. Hussain the reasons for his dismissal. Those reasons identified inappropriate conduct inconsistent with his office including:

1. The preparation of false pay stubs in relation to a fraudulent mortgage brokering scheme;

2. Disclosure of confidential Ministry documents to non-Ministry persons;

3. Engaging in a private financial business and devoting some of his regular work hours to that business;

4. Using his government equipment and resources to receive and disseminate inappropriate images.

3Proceedings on the merits of this matter began in December, 2010. Before the Employer’s first witness had completed his testimony in Chief, the Employer received from the Human Rights Tribunal of Ontario a Notice advising:

1. That it had accepted an Application from Mr. Hussain on February 17, 2011, alleging that he had been discriminated against in respect to his employment and terminated contrary to the Human Rights Code and

2. That the tribunal had “determined that it may be appropriate to defer the consideration of the Application pending the resolution of another legal proceeding dealing with the subject matter of the Application ...”

4Having received that Notice, the Employer recognized that the issue 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 Mr. Hussain’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 before 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 Mr. Hussain’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

6The Grievance filed March 1, 2010 alleges that Mr. Hussain’s termination constituted a violation of his Collective Agreement rights. Although it does not specifically identify the Article 3 which prohibits discrimination, it does reference rights under “any other Act” and is, therefore, broad enough to include treatment he received which was in breach of the Human Rights Code.

7The application to the Human Rights Tribunal alleges systemic discrimination against Mr. Hussain and other visible minorities in his office which culminated in his being “unjustly reprised and terminated from my 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 Mr. Hussain. 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.

8Accordingly, a finding which did not take into consideration a potential violation of the Human Rights Code might prove inconsistent with that legislation. It is, therefore, incumbent upon me to consider any such potential misconduct in deciding the matter (s) before me.

9Here, the Employer asserted, and the Union did not object or challenge, that the issues before the Tribunal significantly overlapped with those before me.

THE DECISION

10In a situation similar to that presently before me, but, where the Union had moved to defer proceedings before the Board to those before the Human Rights Tribunal, I made the following findings (see Re OPSEU (Barillari) and Ministry of Community and Social Services GSB #2006-1932, dated April 10, 2008 (Carrier)) at pages 3 and 4:

“I have considered the information provided by Counsel, and their representations and find, for the reasons which follow:

1. That I have jurisdiction to deal with the Grievor’s complaint of unjust dismissal and, in particular, any issues relevant to the Human Rights Code which might arise during the course of these proceedings;

2. That my jurisdiction to deal with relevant issues concerning the Human Rights Code is concurrent with that of the Commission;

3. That I need not and do not defer to proceedings before that tribunal especially, since, I understand, proceedings on the merits have not yet been initiated there;

4. The matter will proceed before the Grievance Settlement Board in the ordinary course.

I adopt those findings here as well as the “Reasons” at pages 4 and 5 as follows:

“By operation of the Crown Employees Collective Bargaining Act and, in turn, the Labour Relations Act of Ontario (s.48 12 j) I have power:

(j) to interpret and apply human rights and other employment related statutes, despite any conflict between those statues and the terms of the collective agreement.

In addition to the power conveyed by the legislation, the Parties’ collective agreements.3.1 provides that:

There shall be no discrimination practiced by reason or race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status, or handicap, as defined in Section 10(1) of the Ontario Human Rights Code (OHRC).

The Employer’s conduct in terminating the Grievor is alleged to have been unjust. That it may have been unjust is, if not entirely, at least, in part, premised on allegedly discriminatory conduct in breach of the Human Rights Code. An arbitrator is not at liberty to disregard that legislation and discriminatory conduct and make a finding which is inconsistent with the Code. To do so would, in effect, be an endorsement of the discriminatory conduct which is in breach of the Code. I conclude that the dispute here including matters relevant to the Human Rights Code fall within my jurisdiction.

On the other hand, pursuant to the Code, the Human Rights Commission also has jurisdiction to consider and resolve allegations of discriminatory conduct arising within the employment context. The Grievor’s Complaint has raised such issues before the Commission.

In the circumstances, it is my view that there is concurrent jurisdiction in the Human Rights Commission and the Grievance Settlement board to deal with the dispute and the Human Rights issues raised by the Grievor in each forum.”

As in the Barillari case, the Board here 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.

11I conclude that this is an appropriate forum to address those issues. Further, since the Human Rights Tribunal has yet to confirm it’s intent to proceed, and, indeed, appears ready to defer to this Board, I direct that this matter proceed as scheduled before the Grievance Settlement Board.

12The Union is directed to provide additional particulars, if any, of the employer conduct which is alleged to have been discriminatory. Failure to do so promptly and, no later than the end of April, may impede its right to call evidence concerning matters which have not been particularized with respect to the who, when, what and where of the conduct and the manner in which it is alleged to have been discriminatory.