The Ontario Grievance Settlement Board recently confirmed it has jurisdiction to order the discipline or dismissal of managerial employees for engaging in sexual harassment, where the resolution of differences between the collective bargaining parties requires such action.
The Ontario Public Service Employees Union (the “Union”) sought an order from the Board terminating a manager’s employment for allegedly sexually harassing other employees. In the alternative, the Union asked that the manager be transferred to another location or precluded from exercising supervisory functions over any employee. The Ontario Ministry of Community Safety and Correctional Services (the “Employer”) disputed the Board’s jurisdiction to direct that a manager be disciplined or discharged.
The Board found that where the discipline of a manager is absolutely necessary for preserving and ensuring collective agreement rights, the failure of the Board to address the manager’s discipline would amount to a jurisdictional error. The Board held that it is charged, by both statute and the collective agreement, with providing a final and binding settlement by arbitration of all differences between the parties arising from the interpretation, application, administration or alleged violation of the collective agreement. As a result, remedial action necessary for the Board to fulfill its mandate falls within the Board’s jurisdiction.
The Board was careful to note, however, that remedies involving the discipline of a managerial employee would be “rare and exceptional”. The Board found that the facts asserted by the Union, if proven, were such that transfer or demotion of the manager would likely be appropriate and sufficient, and that discharge would not be necessary.
Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Pinazza Grievance), Ontario Grievance Settlement Board, B. Herlich, Vice-Chair, August 9, 2004