GSB#2008-2690

UNION#2008-0329-0019

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Stevenson)

Union

• and -

The Crown in Right of Ontario (Ministry of Health and Long-Term Care)

Employer

BEFORE

Joseph D. Carrier

Vice-Chair

FOR THE UNION

Jodi Martin Paliare Roland Rosenberg Rothstein LLP Counsel

FOR THE EMPLOYER

Roslyn Baichoo Ministry of Government Services Labour Practice Group Counsel

HEARING

May 15, 2013.

Decision

1In the case before me the Grievor, Wade Stevenson, grieved as long ago as November of 2008 that the Employer, the Ministry of Health and Long-Term Care, was in violation of Article 3 of its Collective Agreement with OPSEU as well as the then existing provisions of the Ontario Human Rights Code. In particular, Wade was concerned that the prefixes and pronouns used in employment correspondence and within the Province’s WIN system were not gender neutral and, additionally, that there was no category within that system to aptly identify or refer to transgendered persons such as the Grievor.

2Although there exists an application by the Grievor to the Human Rights Tribunal which is in substance similar to that before this Tribunal, the parties agreed that there was concurrent jurisdiction here to deal with the Human Rights aspects of the complaint. In the circumstances, I consider the matter properly before me with respect to the alleged violation of the Collective Agreement as well as any potential violation of the Human Rights Code of Ontario. Indeed, it is my view and this Tribunal has previously and correctly held that determinations before this Board must be consistent with the Human Rights Code. Section 5. (1) of the Human Rights Code now defines the right to equal treatment in employment as follows:

“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, gender identity, gender expression, 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); 2012, c.7, s.4(1)”.

The Issue

3Presently before me is a motion by Employer counsel, Roslyn Baichoo, that the Grievor’s grievance has been satisfied through accommodations implemented by the Employer since the filing of the grievance. Perhaps the best expression, albeit in summary form, of the efforts undertaken by the Employer to satisfy the Grievor since the grievance was filed is expressed in a letter of June 28, 2010. That letter was addressed to Ms. Jodi Martin, counsel for OPSEU on this matter, and authored by Ms. Ferina Murji, then counsel for the Employer, who for personal reasons has handed over carriage of this matter to Ms. Baichoo. In any event, that letter reads as follows:

Re: OPSEU (Stevenson) and Ministry of Health and Long Term Care GSB File No. 2008-2690

I am writing further to our exchange of correspondence and particularly to your last letter dated June 23, 2010.

I can advise as follows: once the Grievor completes the requisite form to advise the Employer of his desire to exclude himself from gender identification and once the modified WIN system is implemented (anticipated timeline of September 2010), no gender prefix will precede the Grievor’s name in the system or in correspondence that is addressed to the Grievor.

While we regret that the Union and the Grievor do not like the system term of “unknown” to identify individuals who do not subscribe to the terms male or female, as we have explained repeatedly, this is the term that has been designated and we are unable to change this term given all of the other system changes that have already been implemented. For the record, we take serious objection to your labeling the term “unknown” as derogatory and insulting, as the Employer has taken a number of serious and onerous steps to affect a system change of this kind.

Please note, as far as the Employer is concerned, it has taken good faith and genuine steps to address the issues raised by the Grievor in the grievance procedure and as described by you at the hearing date of October 20, 2009. Similarly, we have addressed the issues raised in the Grievor’s outstanding complaint to the Ontario Human Rights Tribunal. Accordingly it is our view that there are no outstanding matters remaining between the parties in either forum.

Thank you for your attention to this matter.

4The two issues complained of by the Grievor, that is, the allegedly inappropriate use of gender specific prefixes in addressing the Grievor within the WIN system and through communications, and secondly the absence within the WIN system of a category that could be considered gender neutral were addressed in the letter. As to the first of those, the WIN system was altered to eliminate the problem, and, correspondence with the Grievor has since then been handled in a gender neutral way. These changes to accommodate the Grievor have achieved their purpose and the corresponding aspects of the grievance have been satisfied. The Grievor, I understand, did follow the recommendations set out in the letter from Ms. Murji and was satisfied with the results. The grievance in that regard is, therefore, resolved and no longer before me.

5On the other hand, the second issue identified in that letter relating to the gender characterizations available within the WIN system has not been addressed to the Grievor’s satisfaction. It is that issue which is before me today and concerning which Ms. Baichoo has raised a preliminary motion on behalf of the Employer.

Among the documents produced at the hearing was an extract from the employee area of the Ontario Government Website which identified and described briefly the WIN system in the following terms:

OntarioSharedServices My Pay and Benefits

About WIN

What is Workforce Information Network (WIN)?

It is an enterprise-wide integrated, internet-based application using PeopleSoft software to manage payroll, benefits and human resources data in the Ontario Public Service (OPS). WIN was launched in 1999 and most recently upgraded in 2010 through the Payroll Modernization Project. It contains employee information, such as, personal data (e.g. home address), attendance, benefits and job information. Ontario Shared Services (OSS) supports the application.

Who uses it?

Users of WIN include: employees, managers, human resources staff and pay and benefits staff. Entrust – PKI (Public Key Infrastructure) is used to access WIN and to secure employee information

The submissions, discussion and decision

6Consistent with the opinion expressed by Ms. Murji in the last paragraph of her letter to Ms. Martin, the Employer here takes the position that it has provided an accommodation to the Grievor which satisfies its obligation pursuant to the Collective Agreement and the Human Rights Code. The addition of the category “unknown” was a full and fair answer to the Grievor’s concerns. The Ontario Human Rights Code, even as amended to protect against discrimination by way of gender identification and/or expression, has been satisfied by the availability of this new characterization which is clearly gender neutral. Ms. Baichoo argued that, although the new category may not be perfect and may not subjectively satisfy the Grievor, the Employer, in good faith, went to great lengths to provide a gender neutral category within the WIN system. The addition of the new characterization of “unknown” is a fair response not only to the Grievor’s complaint but the Human Rights Code itself. The change implemented was not a simple one made available only to the Grievor; rather, it involved a complex reprogramming issue which affected the entire WIN internet application within the Province of Ontario.

7In support of her position Ms. Baichoo referred us to jurisprudence from, amongst others, the Supreme Court of Canada which confirmed that an accommodation need not be perfect so long as it addresses adequately the protected right. [See, for instance, McGill University Health Centre (Montreal General Hospital) v. Syndicat des Employes de l’hopital General de Montreal, 2007 SCC 4]

8On behalf of the Union, Ms. Jodi Martin did not disagree that the Employer had in good faith attempted to satisfy the Grievor’s concerns nor did she disagree with the jurisprudence that an accommodation need not be perfect to satisfy the requirements of the Human Rights Code. However, it was her position that the very issue to be determined on the merits was whether or not there was and continues to be discrimination against the Grievor with respect to gender identification and expression. It is not a preliminary matter but comprises the very substance of the case to be put at arbitration. The Union here, in the ordinary course, would seek to introduce evidence and argument to clarify the Grievor’s ongoing concerns and the inadequacy of the introduction of the category “unknown” to satisfy not only the Grievor but the requirements of the Human Rights Code itself. It was in her submission inappropriate to put the cart before the horse by dealing with the issue as a preliminary motion without considering a full presentation of the Union’s case. Given the proper opportunity, the Union would be presenting a case to demonstrate that, while the accommodation efforts of the Employer were performed in good faith, the result was inadequate to remedy the entirety of the challenge raised by the Grievor in this grievance.

9I have considered the scant evidence presented and the able submissions of counsel and I am of the view that the position of the Union must prevail with respect to this preliminary motion. In order to assess the adequacy of an accommodation, it must be measured against the nature or manner in which the right is alleged to have been violated. In this case, there is no evidence yet before me as to how or why the accommodation by way of introduction of the term “unknown” fails to meet the requirement that it not be discriminatory with respect to gender identity or expression. While the new category is an attempt to accommodate the need, the question remains as to whether or not it does indeed satisfy that need. It is my view, that the Union is entitled to present its case to show the manner in which the need has not yet been reasonably or satisfactorily accommodated let alone perfectly accommodated.

10By way of analogy, an injured person who by way of disability can no longer stand to perform his or her usual duties might be provided with a chair at his work place in order to accommodate his disability. However, if the chair is too short for the employee to reach the controls and perform the functions he must perform to do his job, the accommodation is not only imperfect but inadequate. It would not be sufficient for the Employer in that case to say we accommodated his inability to stand at his work station by providing a chair. In that case, without evidence from the Complainant concerning the context of the accommodation such as the height of the equipment and the controls to operate it together with the height of the chair, it would be impossible to assess the adequacy of the accommodation provided by the Employer. So too in the case before me, the adequacy of the attempted accommodation must be viewed in context including evidence, for instance, of the nature of the need itself and the circumstances in which the need to be accommodated arises. Absent that contextual evidence, there is no background against which to measure the adequacy of the accommodation to satisfy the requirement that it not be discriminatory with respect to gender expression or identity.

11In the circumstances, it is my view that Ms. Martin was correct when she asserted that the preliminary motion is an attempt to put the cart before the horse. The Employer has asked me to determine the adequacy of the term “unknown” in a vacuum without the benefit of any standard against which to measure its ability to satisfy the need raised by the Grievor in the first instance.

In all the circumstances, it is my view that the employer’s motion is premature. It is, therefore, dismissed.

12I, of course, remain seised to deal with the merits of this case. It will continue on date(s) to be set by the Registrar in the ordinary course.