An arbitrator in Ontario has issued an interim ruling in a case involving a worker at the Regional Municipality of York who alleged discrimination and harassment based on race and gender, as well as reprisal.
The grievance stemmed from an investigation under York Region’s Workplace Harassment and Discrimination Policy (WHD Policy). In the summer and fall of 2021, the worker, a Black woman, reported several instances of discrimination and harassment.
The investigation, however, concluded with a finding of “insufficient evidence” to substantiate her claims. Dissatisfied with the outcome, the worker, through her union, filed the grievance alleging systemic racial discrimination and a racially poisoned work environment.
Key rulings
Arbitrator Mark Hart addressed several preliminary issues, including the scope of the grievance, the timeliness of certain allegations, and the arbitrability of claims related to managerial and non-union positions.
He divided the allegations into three categories: those raised before the grievance, those arising before but not included in the initial complaint, and those post-dating the grievance.
Scope of the grievance
Hart confirmed that the grievance covers allegations raised by the worker in the WHD complaint process leading up to Dec. 7, 2021. This includes claims about denied mentorship opportunities, bullying, microaggressions, and alleged failures by the employer to address discrimination.
Timeliness of allegations
The arbitrator struck several allegations due to undue delay. Allegations dating back more than three years before the grievance filing, and those not raised during the initial WHD complaint, were dismissed.
Hart emphasized the prejudice caused to the employer by having to respond to stale-dated claims, noting the difficulty in addressing events and comments alleged to have occurred years prior without timely notice.
Arbitrability of managerial and non-union positions
Crucially, Hart ruled that claims related to the worker’s applications for managerial or supervisory positions outside the bargaining unit are inarbitrable.
He noted that the collective agreement does not cover disputes over non-union positions, and such claims fall outside his jurisdiction. This ruling dismissed significant portions of the union’s allegations which argued that systemic racism affected hiring for these positions.
Next steps
The case will proceed with a bifurcated hearing scheduled for December 2024 and February 2025. The first stage will focus on whether there was a violation of the collective agreement or relevant legislation based on the remaining allegations. Any discussion of remedies will follow if a violation is established.
Lessons from this interim ruling
- Timely Documentation and Reporting: Ensure timely documentation and prompt reporting of all workplace discrimination and harassment complaints to prevent issues related to the timeliness of allegations.
- Scope of Collective Agreements: Understand the limits of collective agreements, particularly regarding non-union positions, to avoid jurisdictional disputes.
- Address Systemic Issues Proactively: Actively address and document efforts to mitigate systemic discrimination and create inclusive workplace practices to prevent and defend against claims of systemic bias.
For more information, see Canadian Union of Public Employees, Local 905 v Regional Municipality of York, 2024 CanLII 47637 (ON LA).
