OPSEU Win in Supreme Court of Canada – Court Affirms Arbitrators Can Require Management Rights to be Exercised in Accordance with Human Rights
In the District of Parry Sound Social Services Administration Board v. Ontario Public Service Employees Union, Local 324, the Supreme Court has ruled that arbitrators can require the exercise of management rights to comply with human rights, regardless of any language in the collective agreement that tries to limit access to arbitration.
An OPSEU member was fired at the end of her probationary period. OPSEU alleged the firing was motivated by her pregnancy leave. The collective agreement stated that the discharge of a probationer was “not subject to the grievance and arbitration procedures and does not constitute a difference between the parties “. OPSEU filed a
grievance anyway, and argued that the arbitrator always has jurisdiction to apply the Human Rights Code. The union relied in part on s.48 (12)(j) of the Labour Relations Act, which states: An arbitrator has power … to interpret and apply human rights and other employment – related statutes, despite any conflict between those statutes and the terms of the collective
agreement “.
The arbitrator found she could hear the grievance. The Divisional Court overruled her and dismissed the grievance. The Court of Appeal reinstated the arbitration award. (By the way, the Court of Appeal also noted that the Employment Standards Act s.44 specifically makes it illegal to fire someone for going on pregnancy leave and s.64.5
deems such protection to form part of collective agreements.)
The Supreme Court of Canada heard the case in January, 2003. The decision was released on September 18, 2003. OPSEU was represented by its General Counsel Tim Hadwen and Peggy Smith of Elliot Smith.
The employer argued that the collective agreement made the discharge of the probationer inarbitrable and that the worker’s human rights argument had to be made to the human rights commission not to the arbitrator. The Supreme Court of Canada rejected that argument and confirmed that the worker’s complaint could go to the arbitrator.
The court stated:
The obligation of an employer to manage the enterprise and direct the workforce is subject not only to express provisions of the collective agreement, but also to the statutory rights of its employees, including the right to equal treatment in employment without discrimination … An arbitrator must have the power to implement and
enforce those rights. … The availability of an accessible and inexpensive forum for the resolution of human rights disputes will increase the ability of aggrieved employees to assert their right to equal treatment without discrimination and this, in turn, will encourage compliance with the Human Rights Code.
This means that management attempts to bargain language putting the exercise of management rights beyond the review of arbitrators will not work where human rights and employment standards rights are violated. Examples of possibly affected areas under a collective agreement would be in the treatment of probationers, the granting of
leaves and any other provision stating that a management right is inarbitrable. Now arbitrators will always be able to hear grievances alleging that human rights and employment standards were violated in the exercise of a management right.
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