An arbitrator has ruled that a union can argue a workplace reprisal claim in a discharge grievance, even though the union only explicitly raised the argument during opening statements rather than in the original grievance filing.
The case involves B.D., a Sudbury Developmental Services employee who was discharged in January 2025 following allegations of resident abuse during a December 2024 night shift. The Canadian Union of Public Employees Local 2599 filed a discharge grievance on Jan. 29, 2025, alleging the termination violated the collective agreement and “any other related articles of the CBA or legislation.”
During the union’s opening statement in April 2025, counsel indicated they would argue the discharge was an unlawful reprisal under the Occupational Health and Safety Act. The employer immediately objected, saying this was the first time they had heard such an argument and that the arbitrator lacked jurisdiction to hear it.
Background
The discharge occurred against a backdrop of workplace conflict. B.D. had previously filed a harassment complaint against co-workers and management. The employer investigated the complaint but did not substantiate harassment findings, instead identifying “interpersonal conflict and communication issues” and implementing training and support programs.
The employer provided its written response to B.D.’s harassment allegations on Dec. 10, 2024 — the same day she was suspended with pay pending investigation of the resident abuse allegations. B.D. was ultimately discharged on Jan. 21, 2025.
Neither B.D. nor the union appeared satisfied with the harassment complaint outcome. They filed a separate harassment grievance on the same day as the discharge grievance, alleging “my complaint of harassment and bullying was not recognized nor taken seriously.”
Employer’s objection arguments
The employer argued the union had “blindsided the Employer with a new theory at the eleventh hour, after it has already gathered evidence, identified witnesses and structured its submissions around the grievance as filed.”
The employer contended it “would be forced to answer a claim it had no notice of, involving new legal issues, new factual allegations and new remedial considerations.”
The employer relied heavily on a 2023 Ontario arbitration decision, Teamsters Local 847 v. Stericycle Inc., where an arbitrator refused to allow reprisal allegations raised for the first time in opening statements.
Union’s response
The union maintained that the reference to “legislation” in the original grievance “was deliberately chosen to include, among other statutes, the OHSA” and “clearly anticipated the potential application of human rights and occupational health and safety legislation.”
The union argued that “the reprisal claim arises from the same factual matrix as the termination, relies on no new facts” and that “the facts underlying the reprisal theory — namely that [B.D.] filed a harassment complaint and was terminated shortly thereafter — were known to the Employer and disclosed well in advance of the hearing.”
Regarding the separate harassment grievance, the union clarified: “The Union is not seeking relief under the procedural grievance in this arbitration and is pending scheduling. Reference to the investigation is made solely to contextualize the termination — specifically, its motive, timing and the individuals involved.”
Arbitrator’s reasoning
Arbitrator Bernard Fishbein acknowledged that “by and large an arbitrator’s jurisdiction is limited to determining issues raised by the grievance” but noted the grievance explicitly alleged a violation of legislation in addition to the collective agreement.
The arbitrator found he clearly had jurisdiction to “interpret and apply human rights and other employment related statutes” under both the Labour Relations Act and OHSA, which “clearly envisages that an allegation of reprisal can be dealt with either as a grievance under a collective agreement or a complaint to the Ontario Labour Relations Board.”
Timing and prejudice considerations
A key factor in the decision was timing. The arbitrator noted that “no evidence has yet been called and the hearing, due to the calendars of the parties and their counsel, is not scheduled to resume until November, several months away.”
The arbitrator stated: “I struggle to see what real or actual prejudice the Employer has suffered” given the circumstances. While acknowledging the employer’s displeasure with how the issue arose, the arbitrator concluded this was insufficient “to prevent the real dispute between the parties — the discharge of the Grievor — whether for just cause or not whether in reprisal for her unsuccessful harassment complaint — from being adjudicated.”
Distinguishing Stericycle case
The arbitrator distinguished the Stericycle decision the employer relied upon, noting several key differences. In Stericycle, the arbitrator dealt with six different grievances spanning multiple disciplinary stages, none of which previously raised reprisal arguments. Additionally, the Stericycle arbitrator required the union to provide extensive new particulars, unlike here where the union “repeatedly asserts that no new evidence is required.”
Conditions and warnings
While allowing the reprisal argument to proceed, the arbitrator imposed conditions. He stated he would “hold the Union to its assertions of ‘no new evidence'” and warned that “if at some point in time the Union does attempt to introduce new evidence, I will entertain a fresh objection from the Employer.”
The arbitrator also noted that preventing the reprisal issue from being raised in the discharge grievance would not be “a particularly constructive labour relations outcome nor an efficient allocation of scarce resources.”
The hearing is scheduled to resume in November 2025.
For more information, see Canadian Union Of Public Employees , Local 2599 v Sudbury Developmental Services, 2025 CanLII 59135 (ON LA).
