Even old grievances might not be moot

Ravenlaw gratefully acknowledges the contribution of this post by articling student Karen Sisson.

A recent decision of the Ontario Arbitration Board affirms the employee’s right to a hearing for grievances related to systemic issues in the workplace, even where the issue may appear to be moot.

In the 2020 CAS v CUPE[1] decision, the employer had made a motion to dismiss an employee’s 2016 grievances, which alleged an incident of workplace harassment as well as a failure to meet obligations under the Collective Agreement pertaining to accommodation.

The Grievor in this matter had made an allegation of harassment against a supervisor. The incident was alleged to have occurred during discussions about the Grievor’s accommodated return to work plan. Following the filing of the grievance in 2016, a workplace remedy was applied wherein the employer agreed that the Grievor would no longer be supervised by that particular supervisor. The employer also agreed to review expectations with respect to return to work planning with all supervisors.

The Grievor and the employer continued to engage in negotiations for a return to work plan, but no plan was ever agreed to. The Grievor filed an additional grievance, alleging that the employer had failed to meet their accommodation obligations under the Collective Agreement.  Both grievances were filed in 2016. At the time of the Hearing in 2020, there were no new reports or concerns with respect to harassment, and the Grievor had successfully returned to their full-time position.

The employer brought a motion to dismiss the employee’s grievances, relying on the fact that they had already engaged an adequate remedy, and the grievance was thus out of scope of the Arbitration Board. There had been no further issues raised since the grievances were filed in 2016.  The employer argued that the “fact specific” nature of the grievances meant that the issues were now moot, and there was no benefit to the ongoing relationship of the parties to pursue further resolution. The employer alleged that a hearing on the grievances would “dredge up controversy and conflict at great expense”, potentially having a detrimental impact on ongoing labour relations, and on the Grievor.

In reply, the Union highlighted that an allegation of harassment in the workplace is a live issue which requires a formal resolution.  The passage of time should not be relied on to “wash away” the fact of the allegation.  Furthermore, a resolution of the grievance alleging a failure to accommodate the Grievor would assist the parties in their application of the Collective Agreement. The Union also highlighted that the Grievor may be entitled to damages to compensate for the harm they suffered because of the alleged harassment.

In its decision, the Arbitration Board explicitly stated that the doctrine of mootness applied in the context of criminal and civil matters is not applicable in the same manner to labour relations. Citing a prior decision in the analysis, Sherbrooke Community Society v SUN Local 22[2], the Board stressed that “The parties before an arbitrator, by definition, must continue to live together in a work relationship under a collective agreement… once a systemic issue is raised by a particular grievor, it does not simply disappear, due to a change in that particular person’s individual circumstance”.

The Board declined to follow earlier decisions where the doctrine of mootness had been applied, distinguishing the grievances in this matter on the grounds that these grievances raised more complex issues than those raised in the prior decisions. The Board also emphasized the significant evolution in the last 15 years regarding damages involving harassment and/or violations of the Human Rights Code.  While the Grievor had successfully returned to work since the grievance had been filed, the question of whether the accommodation plans were adequate, or adequately adhered to in the workplace, remained a live issue.

With respect to the allegation of harassment, the Board unequivocally found that the efforts of the employer to remedy the issue in the workplace did not resolve the grievance. Actions taken by the employer in response to the allegation were relevant to quantifying potential damages, but they did not adequately meet the labour relations purposes served via a hearing on the issue. A hearing on the issue would provide instruction to the parties about how similar situations can or should be dealt with in the future.

Given these observations, the Board found that “The underlying questions about the substance of the Grievor’s allegations remain alive and require resolution, for her sake and for the sake of the parties’ understanding of their rights under the Code and the Collective Agreement”. Absent a mutual agreement with the consent of both parties, the case was not one where it would be appropriate to halt the proceedings.

This decision is significant for its recognition that an employee’s right to remedy for potential breaches of the Human Rights Code cannot be said to have disappeared via the passage of time.  The resolution of systemic issues is a vital component of labour relations, and an employer can not escape the potential application of a remedy via a hearing by the Arbitration Board on such matters.

[1] The children’s Aid Society of Toronto and The Canadian Union of Public Employees and its local 2316, 2020 CanLII 34509 (ON LA).

[2] Sherbrooke Community Society v SUN Local 22, 2 L.A.C. (3d) 97 (Norman).

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