GSB# 2021-2179

UNION# 2021-0285-0013

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Grievor)

Union

• and -

The Crown in Right of Ontario (Liquor Control Board of Ontario)

Employer

BEFORE

Joseph D. Carrier

Arbitrator

FOR THE UNION

Anjana Kashyap Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Andrew Cogswell Liquor Control Board of Ontario Counsel

HEARING

December 5, 2024

Decision

1The present issue relates to a Motion by the Employer, the LCBO represented by Andrew Cogswell to strike out various paragraphs of the Union’s particulars in relation to the termination of the Grievor in October 2021.

2The particulars are set out in a letter to counsel from OPSEU representative Anjana Kashyap, dated March 4, 2024. There are 27 paragraphs in that letter inclusive of the remedies requested in paragraph 26 and 27.

3The Grievance alleges that the termination was without just cause and represented a violation of the Collective Agreement and the Human Rights Code by way of harassment and discrimination and a failure to accommodate under the Code.

BACKGROUND

4The Grievor was employed in an LCBO store in Guelph when she was terminated for inappropriate conduct with respect to co-workers and customers while at work.

5She had been off on extended medical and maternity leave between December 2020 to August 2021. During that time frame she chose to move her family home from Guelph to Sarnia.

6The events leading up to the termination in October, 2021 occurred during the relatively brief period following the Grievor’s return to work in August of 2021.

7Underlying the Employer’s challenges are two key elements:

(a) some of the particulars should be struck for insufficiency, that is, they do not in themselves, even if taken as true, establish a prima facie case.

(b) some should be struck because they represent an expansion of the scope of the Grievance as framed. They therefore, represent an attempt to substitute one dispute for another and/or to add a new dispute to the initial grievance.

8In support of his submission, Mr. Cogswell referred to several authorities, including the following:

OPSEU v Ontario (MCCSS) Jackson GSB’s 2019-1995, 2019-2941, 2020-1545 April 26, 2021 (Banks)

ATU Loc.1587 v Ontario (Metrolinx) (Policy) GSB# 2021-0016, Nov. 30 2023 (Wilson-Chair)

9Ms. Anjana Kashyap speaking for the OPSEU argues that none of the particulars should be eliminated in as much as they provide the context of the matter identified in the grievance and/or assist in informing the narrative of the Grievor’s allegations.

10Fundamental to the Union’s case and many of the challenged particulars is the allegation that the Employer was aware that the Grievor suffered from mental health issues prior to her termination. In the circumstances, prior to terminating her the Employer had a duty to inquire into her mental/medical status and accommodate her needs in compliance with the Human Right Code. Several of the challenged particulars are based upon that Union assertion.

THE CHALLENGES TO THE PARTICULARS

11The Employer identifies four issues in the particulars which form the basis for the challenges here:

(i) The allegations that the Employer failed to inquire into the medical status of the Grievor.

12While the Employer does not challenge that the Grievor’s alleged disability is relevant, it challenges the historical references to her medical issues as an expansion of the Grievance.

(ii) Family Status

Consistent with that position the Employer challenges particulars related to any failure to accommodate the Grievor on the basis of family status.

(iii) Harassment

Any reference in the particulars to harassment of the Grievor should be struck. Although the Grievance itself alleges “harassment and discrimination” neither the Grievance form nor any of the particulars provide a factual underpinning for the “harassment” element.

(iv) Racial Bias

There is nothing in the Grievance itself which suggests racial bias was an element of the current complaint. The particulars alleging racial bias expressed by a member of the Employer in 2016 should be struck as an expansion of the Grievance. Additionally, it is an untimely allegation in the scheme of the events at issue here and has no factual underpinning in the termination issue.

The Paragraphs 3 & 4, 6 & 7, 9 to 11, 12 to 16

Accommodation/Duty to Inquire/Family Status

13In these paragraphs there is considerable overlap with respect to the particulars identified and, hence, the Employer’s challenges.

14Paragraph 3 itself and Paragraphs 9 to 11.

15The particulars identifies the Union position that “the Employer failed in its duty to inquire into the Grievor’s medical condition and family status accommodation needs. Further, the Employer was made aware of the Grievor’s medical condition and family status needs on a number of occasions.

16The Employer challenges this paragraph in that it raises a family status issue for the first time and which is not the matter identified per se in the Grievance itself.

17Further, paragraphs 9 to 11 relate to the Grievor’s request for transfer from the Guelph store to the Sarnia area which was denied on August 24, 2021 and not grieved.

18The Employer characterizes this as an unwarranted attempt by the Union to expand the termination grievance to include a transfer of venue issue. That matter was not grieved as such within the 10 days of its denial on August 24, 2021 in accordance with the Collective Agreement time limits. Further, there is no corresponding employee right to transfer as requested in the Collective Agreement.

19In the circumstances all particulars with reference to the LCBO failing to entertain or inquire further into the Grievor’s family status regarding her request to transfer should be struck.

20The Union’s position is that the family status issue was inherent in the entire process leading up to the Grievor’s termination. More precisely, her family stressors relevant to travel between Guelph and Sarnia were known to the Employer. That knowledge inclusive of the information provided to the Employer concerning the Grievor’s mental status during that time gave rise to a duty on the Employer to inquire further into the Grievor’s medical condition and family status needs before effecting her termination.

21In support of the Union’s position, Ms. Kashyap referred to several authorities including the following:

Grand Erie District School Board and Ontario District School Teachers’ Federation, District 23, 2021 CanLII 5826 (ON LA), 2021 CanLII5826 (ON LA) (Herman)

Sears v Honda of Canada MFG, 2014 HRTO 45 (Keene)

22I have considered the submissions of Counsel, the Collective Agreement and authorities on this issue and have decided that:

1. …”It is inappropriate to take either a too technical or overly rigid approach to the Grievance document”. (see North Bay General Hospital v OPSEU, [2006] (CanLII 53942 (ON LA) at p. 17)

2. The LCBO through past events as asserted in the particulars had knowledge of the Grievor’s mental and substance abuse struggles. There are authorities which indicate that such knowledge triggers a duty to inquire further in order to determine whether there is a need for accommodation. In this case it could be argued that the Employer had sufficient knowledge of the Grievor’s medical issues so as to trigger such a duty to inquire. Therefore, those particulars and paragraphs referencing the alleged incidents arguably giving rise to that knowledge are not struck in their entirety. They are contextual with respect to the Employer’s knowledge and inform the narrative leading up to the Grievor’s termination.

23In this regard, I refer to the decision of Arbitrator Herman, in the Grand Erie District School Board (supra) matter at para. 21 where he remarks as follows:

21. In light of the Board’s knowledge prior to the termination that the Grievor had mental health issues related to his work, that he had seen a Psychiatrist in September 2009 and was scheduled to see him again on April 20, 2010, and that the Grievor had recently seen a Psychologist who had diagnosed the Grievor with several mental health issues, and in light of the discrimination and accommodation issues raised in the HRTO Application, we are satisfied that the Board understood, or should have understood, that the Grievor’s termination was also being challenged on the basis that it was discriminatory and that the Board had failed to properly accommodate him.

24So too in Sears v Honda MG. 2014 HRTO 45, a decision before the Human Rights Tribunal of Ontario, the adjudicator, Judith Keene comments about the Employer’s duty to inquire at paragraphs 114, 115 and 128 as follows:

114The evidence shows that the applicant did not formally request accommodation. However, the procedural duty to accommodate indicates that an employer cannot passively wait for an employee to request accommodation where it is aware of facts that indicate that the employee may be having difficulties because of disability; there is a duty to take the initiative to inquire in these circumstances.

115A number of decisions of this Tribunal, as well as other tribunals applying human rights legislation, have considered when a respondent can be said to have enough knowledge of an applicant’s disability to trigger responsibilities under human rights legislation. Most of these decisions have arisen in the context of identifying when the employer has a duty to accommodate. Most decisions indicate that the claimant will not be held to a high standard of clarity in communication. This approach is in keeping with the principles enunciated by the Supreme Court of Canada in respect of the need to interpret human rights legislation generously and purposively. Liability has been found when an employer had no knowledge of the disability.

128Based on the above-noted jurisprudence, it is fair to say that the procedural duty to accommodate, including the duty to inquire into the situation of the person needing accommodation, can arise without a specific request for accommodation by the individual in circumstances in which there is reason to believe that the individual is having difficulty in an area included in Part 1, because of personal characteristics protected by the Code.

25While those provisions allegedly establishing the pre-existing knowledge of the Employer regarding the Grievor’s mental state are not struck for the purposes of the termination itself, they are struck insofar as they attempt to insert the transfer request denied on the basis of family status as an issue to be determined here. That is an attempt to add a new issue to the termination grievance. It does not as such fall within the scope of the present grievance.

26However, if the final outcome of this arbitration favours a failure by the Employer to accommodate the Grievor’s needs, an ensuing accommodation may involve a relocation of some kind.

27At this stage, the validity of the allegations is not the issue, only whether the particulars fall within the scope of the grievance. Those reflecting the Employer’s knowledge that the Grievor was suffering mental difficulties prior to her termination are not struck. Those suggesting that the denial of the transfer request is an issue to be determined here on the basis of family status are struck as an expansion of the Grievance.

Harassment Paragraph 2, 21 to 25 and 26(d)

28All these paragraphs refer to Harassment and Discrimination amongst other things. The Employer takes the position that there is no factual underpinning for “Harassment” in the Grievance itself or any of the particulars. In the circumstances, the allegation of harassment should be struck from the particulars as it is unnecessary, and lacking in particularity as to the who, when, where and how of the allegation.

29Although allegations of harassment and discrimination are typically referred to in unison, I agree with the Employer counsel that the term harassment has no underpinning in the facts or particulars alleged. The Union suggests that, at worst, I order more fulsome particulars here. I see no purpose in ordering additional particulars where those present and the grievance as framed provide no indication whatsoever that the Grievor had been subjected to any form of harassment.

30In the circumstances, the term and allegation of harassment are struck from all particulars.

Racial Bias Paragraphs 22 to 25

31The Employer contests the addition of racial bias to the Union’s allegations. Here, the Union refers to the investigation of the termination and the Letter of Termination all of which were conducted by the same individual, the Grievor’s District Manager. The particulars in question note that the District Manager held the position of the Grievor’s direct Manager when in 2016 he was heard by her to make “a racial slur in the workplace in front of herself and two (2) other racialized employees”.

32The Employer takes the position that the allegation predated the termination by over five (5) years and there is nothing further in the particulars during ensuing years to resurrect that issue. Aside from the identity of the individual, there is no factual underpinning to the current issues to validate the assertion. It is a bald allegation.

33The Union takes the position that bias is not necessarily fleeting. It is concerning that the same individual who displayed a racial bias in front of the Grievor in the past should be the person effecting her termination.

34In support, the Union references a decision by Arbitrator Dissanayake between these Parties in 2008 (see: Ontario (LCBO) v OPSEU GSB# 2005-3601, 2008 CanLII 32798(ON GSB).

35In that case, the grievance related to a job competition held in November, 2005 which was grieved on January 5, 2006. The Union sought to introduce “post-grievance” evidence concerning one of the interviewing panelists from a subsequent 2006 job competition in which the Grievor was again a candidate. In the later job competition that same panelist was alleged to have made comments which the Union characterized as racial slurs. At page 4 of the decision the Arbitrator determined as follows:

One of the issues before me is whether or not Mr. Fagan entertained a bias against the grievor during the 2005 job interview because of the grievor’s ethnicity. Thus, in applying the test in Re Quebec Cartier (supra), I must determine whether, evidence that Mr. Fagan made racial slurs based on the grievor’s ethnicity (if established) during the subsequent 2006 job interview, sheds light on that issue before me. I have concluded that it does.

Bias, particularly racial bias, is a state of mind. If the union successfully substantiates that Mr. Fagan entertained a bias against the grievor because of his ethnicity in 2006, it would shed light on, and therefore would be relevant, to the issue before me. That is, whether Mr. Fagan had a similar bias during the previous job interview in 2005.

36Before concluding his decision Arbitrator Dissanayake at pages 5 and 6 referred to Toronto Board of Education v Ontario Secondary School Teacher’s Federation District 15, 1997 CanLII 378 (SCC), [1997] 1 S.C.R. 487 (Supreme Court of Canada).

37In that case a Board of Arbitration had reinstated a teacher who had written two letters to the Employer “which included disturbing accusations and comments that could be viewed as veiled threats to the lives of several members of management…The Board concluded the Grievor’s conduct was only temporary and not likely to be repeated in the future, and ordered reinstatement subject to conditions”.

38However, the Court on review noted that the Grievor had written a third letter after his grievance had been referred to arbitration which was similar to the earlier two. The Supreme Court first determined that the Board of Arbitration erred in failing to take that letter into consideration.

39It then reasoned that the subsequent letter shed light on the Grievor’s state of mind and determined that the Grievor’s propensity to write disturbing letters was not temporary.

40In the circumstances, the Court then found that there was additional evidence of a continuing state of mind which contradicted the Board of Arbitration view that the state of mind or propensity was temporary.

41In effect in that case the Court reviewed the Board’s decision only because it wrongly disregarded subsequent evidence confirming that Grievor’s state of mind. Regardless of the Court’s consideration of the later evidence confirming a continuing state of mind, Arbitrator Dissanayake was more emphatic on the issue when he expressed his view and distinguished the case before him as follows:

“I recognize that in that case the issue before the Board was continuing state of mind of the grievor. The present case before me is different in that the issue is whether an individual’s state of mind in 2006 helps to shed light on that individual’s state of mind in 2005. In my view, racial bias is not normally a propensity or state of mind that changes from year to year. I conclude that the subsequent conduct – and therefore the state of mind that led to that conduct, although not conclusive proof, at last “helps shed light” on the issue I am called upon to decide with respect to Mr. Fagan’s conduct during the 2005 job interview Therefore that evidence is admissible.

I wish to make it clear that nothing in this decision should be construed as suggesting that Mr. Fagan committed any of the alleged acts, in 2005 or in 2006. At this point, they are allegations and nothing more. The onus is on the union to prove those allegations.”

42I have considered the submissions of Counsel with respect to the issue of racial bias and the relevant particulars. I am reluctant to admit past evidence of racial bias where it relates to an incident which predates the termination by five (5) years.

43In the case before Arbitrator Dissanayake, there was only 1 year between the two job competitions and it was during the later assessment that the panelist allegedly demonstrated racial bias.

44In the case at hand, assuming even that the Grievor’s then manager exhibited racial bias in 2016, there is no basis or fact alleged in 2021 to shed light on his state of mind when investigating or issuing the termination letter. Absent such a connection, I am of the view that the incident five years earlier would not be helpful in shedding light on the Manager’s state of mind in October, 2021.

45Therefore, the relevant particulars related to racial bias reflected in paragraphs 22 to 25 and elsewhere in the particulars are struck.