GSB#2013-2789

UNION#2013-0362-0022

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bharti)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Ian Anderson

Vice-Chair

FOR THE UNION

Billeh Hamud Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jonathan Rabinovitch Ministry of Government Services Legal Services Branch Counsel

HEARING

September 9, 2014

Decision

1The Ontario Public Service Employees Union ("the Union") seeks an interim remedy from the Grievance Settlement Board ("The Board") pursuant to section 48(12)(i) of the Labour Relations Act, 1995, Rule 10 and Appendix "A" of the Board's Rules of Procedure, to accommodate Mr. Viren Bharti ("the Grievor") by permitting him to work in the Greater Ottawa Area until the final disposition of his grievance.

Background

2In 2005, the Grievor applied and was hired for the position of Terrestrial Assessment Program Biometrician (a statistician). The job posting indicated that the position was located in either Sault Ste. Marie (preferred) or Peterborough. At the time of hire, the Grievor informed the Employer of his intention to sell his home in Ottawa and relocate his family to Sault Ste. Marie. The Employer agreed to temporarily allow the Grievor to work from the Peterborough office until he secured the sale of his home and then relocated to Sault Ste. Marie. The Employer later allowed the Grievor to work permanently from Peterborough.

3The Grievor has continued to live in Ottawa. Since 2006, the Grievor has been seeking permission to work from Ottawa. The Grievor is the only statistician in the section and his work is necessary to support the department’s ongoing needs. The Employer’s view is that work is best performed in Peterborough or Sault Ste. Marie.

4In March 2013 the Grievor filed the present grievance. As initially filed the grievance simply alleged “that the Employer did violate the Human Rights Code by not accommodating religious observance requests”. The remedy requested was “that the employee be accommodated for religious observances in accordance with the employee’s religious beliefs”. As reflected in a decision dated June 24, 2014, on the agreement of the parties the Union was permitted to expand the grounds of the Code which it said were engaged, but it was required to file full particulars with respect to all such grounds by a specified date.

5The Union provided particulars to the Employer as directed by the June 24, 2014 (although they were not filed with the Board). In those particulars, the Grievor alleges that his sincerely held religious beliefs as a married Hindu man require him to pray with his wife twice per day: once in the morning and once in the evening. The Grievor also alleges that both of his parents, who reside with him and are in their mid seventies, require certain forms of daily care that he provides. He also notes that he is the only person in the household who speaks a language spoken by his parents (Bhojpuri). (However, his parents also speak Hindi. At the hearing he confirmed that his wife speaks Hindi, as do, to some extent his children ages 13 and 20.) The Grievor alleges that the Employer’s requirement that he work from the Peterborough office substantially interferes with these obligations contrary to the Code. The remedy sought by the Grievor is that the Employer accommodate his religious beliefs and family status obligations by permitting him to work permanently from the Greater Ottawa Area.

6In the winter of 2014, the Grievor informed his manager, Joseph Kapron, that his mother-in-law had passed away. As part of the mourning process in his culture and/or religion, he told Mr. Kapron that he had various responsibilities over the coming months, culminating in a trip to the Ganges River in India in September or October of 2014 in order to dispose of the ashes. Mr. Kapron granted the Grievor a temporary arrangement to work from Ottawa from March to October 31, 2014. The arrangement was captured in a Memorandum of Understanding (MOU) signed by the parties on a without precedent or prejudice basis. The Grievor was tasked with a specific project the Employer felt could be accomplished while working from Ottawa.

7In this application for interim relief, the Union seeks an order that the Grievor be permitted to continue to work from Ottawa until the final disposition of the underlying grievance. Hearing dates for the grievance are currently scheduled for November 12, December 4 and 11, 2014.

Proceedings

8In support of this application for interim relief the Union filed a declaration from the Grievor. The Employer filed a declaration from Mr. Kapron in response. The Grievor’s declaration essentially repeats the particulars he provided in relation to his grievance, summarized above. At the outset of the hearing of its application for interim relief, the Union sought leave to call the Grievor as a witness to give evidence with respect to why his wife could not move to Peterborough. The Employer objected to this request. I sustained the Employer’s objection. My reasons for doing so are as follows.

9An application for interim relief is an extra-ordinary procedure. The Board has rules governing such applications. The moving party triggers the process by filing the application and in doing so has control over the material filed in support of its application. The rules require that the application be accompanied by a declaration “particularizing all of the facts on which the applicant relies in its request for interim relief”. The significance of this requirement is underlined by the fact that the rules provide that the Board may dispose of an application without a hearing and without requiring a response. A responding party is required to file its response within tight time frames. Hearings are scheduled on an expeditious basis (indeed, in this case an evening hearing was scheduled in order to accommodate the parties) and decisions similarly are expected to be issued expeditiously.

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