An arbitrator has ruled that a grievance involving a paramedic for the County of Frontenac in Ontario, who alleged unjust termination and failure to accommodate, will proceed to consider not only missed shift compensation but also potential human rights damages.
The decision, handed down by arbitrator Larry Steinberg, dismissed the employer’s preliminary motion to limit the scope of the arbitration to lost wages and seniority.
The case centres around the employee, referred to as AB, who was terminated in September 2022 after a prolonged absence due to medical reasons. Following the termination, a grievance was filed by the Ontario Public Service Employees Union (OPSEU) on behalf of AB, alleging that the employer had failed to accommodate the grievor’s medical needs and sought AB’s reinstatement.
Memorandum of Settlement ‘unambiguous’: Employer
The parties entered into a Memorandum of Settlement (MOS), which allowed AB to return to work with certain accommodations while leaving unresolved the question of compensation for missed shifts. However, the union also sought damages under the Human Rights Code for the alleged failure to accommodate AB, a claim that the employer argued was outside the scope of the MOS.
In its preliminary motion, the employer maintained that the MOS clearly restricted the arbitration to determining compensation for missed shifts. According to the employer, “paragraph 8 of the MOS” was unambiguous in stating that the mediation or arbitration was to “address the missed shifts as outlined above.” The employer argued that this provision demonstrated the parties’ agreement to limit the scope of the arbitrator’s remedial jurisdiction.
The union countered that the MOS was not intended to limit AB’s rights under the Human Rights Code and that the grievance’s reference to unjust termination and failure to accommodate inherently included potential human rights damages. Citing a series of legal precedents, the union argued that waivers of human rights claims must be explicit, and no such waiver existed in the MOS.
Jurisdiction not limited by MOS: Arbitrator
After reviewing the submissions, Steinberg sided with the union, ruling that his jurisdiction was not limited by the MOS. “The only evidence I have before me about whether the parties agreed to eliminate that jurisdiction is the MOS itself. There is no explicit reference to the possibility of human rights damages in that document,” Steinberg wrote in his decision.
Steinberg further explained that while paragraph 8 of the MOS was clear in addressing the missed shifts, it had to be considered in the broader context of the entire settlement. He noted that the document included language referring the entire termination grievance to arbitration, which he interpreted as encompassing the claim for human rights damages.
“The MOS is clearly an interim agreement between the parties to return the grievor to work with temporary accommodations to avoid ‘further missed shifts,’” Steinberg wrote. “The parties further agree that the ‘termination grievance will be referred to arbitration for a resolution,’ which would, of course, include the claim for failure to accommodate the grievor without any restrictions.”
The arbitrator’s decision was grounded in established principles of human rights law, particularly the need for explicit waivers of quasi-constitutional rights. Citing the 2017 Bezoine v. City of Ottawa decision from the Canadian Human Rights Tribunal, Steinberg reiterated that the relinquishment of human rights damages “must be express” and that the absence of such language in the MOS meant he retained jurisdiction to consider AB’s claim.
Frustration for employer
Although Steinberg dismissed the employer’s motion, he acknowledged the frustration the decision might cause for the employer. “I understand the employer’s disappointment with this result,” Steinberg wrote, noting that the MOS was negotiated in good faith and provided benefits for both parties. However, he added that the failure to explicitly address human rights claims in the MOS “dictated the outcome in this case.”
Steinberg directed the union to provide particulars of its human rights damages claim within 14 days. If the parties are unable to reach a settlement following the submission, the matter will proceed to a further arbitration hearing.
The ruling ensures that AB’s grievance will move forward, allowing for the potential consideration of human rights damages alongside the calculation of compensation for missed shifts.
For more information, see Corporation of the County of Frontenac v Ontario Public Service Employees Union on Behalf of its Local 462, 2024 CanLII 91598 (ON LA).
