An arbitrator has dismissed two grievances brought by a former employee of the City of Toronto who alleged harassment and constructive dismissal during and after his employment.
The ruling, issued by Arbitrator Bernard Fishbein, found that the grievances could not proceed under the terms of the collective agreement due to lack of jurisdiction over incidents occurring post-employment and the inapplicability of constructive dismissal in a unionized setting.
J.R., who had worked as an Automated Enforcement Officer in the City’s Transportation Division since 2020, claimed he was subjected to a sustained campaign of harassment and discrimination by the City and its employees. He further alleged that this harassment created a “poisoned work environment” which ultimately forced him to resign in January 2023. The grievances filed by J.R.’s union on his behalf sought extensive relief, including cease-and-desist orders, damages, and lost wages.
Post-employment claims
However, Fishbein concluded that J.R.’s post-employment claims, which included allegations of ongoing harassment by a former City employee and a negative reference that hindered a subsequent job application, were beyond the arbitrator’s jurisdiction.
“As an arbitrator under the Collective Agreement, I have no jurisdiction to deal with alleged improper conduct by the City well after the Grievor’s employment with the City has ended,” Fishbein wrote in his ruling. He cited several precedents where arbitrators had dismissed grievances brought by former employees on similar grounds.
The City argued that since J.R. had resigned, he no longer held the status of an “employee” under the collective agreement, thus excluding him from its protections and the grievance process. J.R. countered that the harassment and discrimination he faced was a continuing issue that could not be divorced from the events occurring post-employment. However, Fishbein was not persuaded by this argument, stating that, “No authority was provided to me for the proposition that a continuing grievance can generally continue for months…after the employment relationship ended.”
Constructive dismissal in a unionized setting
Fishbein also addressed the notion of constructive dismissal, a common-law concept not typically recognized in unionized environments. He cited the landmark 1990 case Toronto Star Newspapers Ltd., where it was established that constructive dismissal does not apply under collective agreements because unionized employees cannot pursue common-law remedies for employment disputes. Fishbein noted, “It appears Toronto Star has largely been followed,” adding that the constructive dismissal doctrine is “inapplicable” here.
J.R.’s union had argued that his resignation was a result of the City’s alleged failure to address his complaints, constituting a “fundamental breach” of its obligations to him and thus falling under an exception to the rule. However, Fishbein rejected this reasoning, writing, “There must be proof of potential harm,” which he noted was not demonstrated in this case since he was not at work at the time of his resignation and continued to receive income.
Framework for workplace disputes
In his ruling, Fishbein highlighted that the City’s collective bargaining agreement, which includes grievance arbitration procedures, provides the framework for handling workplace disputes. He emphasized that these procedures are not designed to encompass issues arising after an employment relationship ends unless explicitly covered by the agreement—a provision that was absent in J.R.’s case.
Despite dismissing the grievances, Fishbein acknowledged that J.R. is not without recourse. He has already filed complaints under Ontario’s Human Rights Code, the Employment Standards Act, and the Occupational Health and Safety Act, which remain adjourned pending the outcome of his arbitration case.
The ruling leaves J.R.’s original grievance on harassment and discrimination unresolved, and further hearings will be scheduled to address that aspect of the case. Fishbein noted that this grievance includes claims for damages and compensation, suggesting that it could address some of his concerns regarding his alleged mistreatment while employed.
For more information, see Canadian Union of Public Employees, Local 79 v Toronto (City), 2024 CanLII 94967 (ON LA).
