HomeMy WebLinkAboutAggarwal 18-03-121
IN THE MATTER OF AN ABITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union)
AND
SHERIDAN COLLEGE (the College)
RE: Grievances of Bharat Aggarwal (the grievor); Grievance Numbers 2015-0244-0015, 2016-
0244-0019, and grievances dated April 15, 2016 and June 8, 2016
Appearing for the Union: Mathieu Belanger and Rebecca Liu, Dewart Gleason LLP
Appearing for the Employer: Daniel J. Michaluk, Hicks Morley LLP
Sole Arbitrator: Norm Jesin
Hearings Held: In 2017: February 7, 8, 9, September 26, October 5 and 11
Date of Decision: March 12, 2018
AWARD
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This case deals with four grievances alleging improper treatment of the grievor by the
grievor’s associate dean, Rob Giberson. The grievor is a full time professor in the College’s School
of Business and was hired by a committee chaired by Mr. Giberson in 2013. The grievances are
based on allegations that Mr. Giberson has conducted a pattern of harassment and bullying
toward the grievor and that such conduct has worsened when the grievor has sought to exercise
his rights under the collective agreement. In addition there are particular allegations that the
grievor was denied tuition reimbursement for a DBA program that the grievor was taking and a
further allegation that the grievor was directed to perform work during his vacation period. The
grievances, in part are more particularly set out below.
1. The grievance dated October 1, 2015 alleges a violation of Article 4.02 (which requires
the College to ensure that employees are free from harassment or bullying ) and
asserts that the grievor does not wish to work under Mr. Giberson. It states that Mr.
Giberson “does not want my success and he only causes difficulties for me ”. Instead
the grievor seeks to continue to teach accounting under the supervision of Jeremy
Styles.
2. The grievance dated April 15, 2016 alleges a violation of Articles 3 (which prohibits
intimidation, discrimination or interference for union activity or filing a grievance or
workload complaint) and 4. Relief sought includes tuition reimbursement, assignment
to a new associate dean and compensation.
3. The grievance dated June 8, 2016 makes essentially the same allegations and seeks
the same relief as the second grievance.
4. The grievance dated July 12, 2016 alleges a violation of articles 2, 4 and now 15 (the
vacation provision). In addition to assignment to a new associate dean, the grievance
seeks orders that the College cease bullying, harassment, intimidation and as well as
an order for rehabilitation of the grievor’s reputation.
The College, and Mr. Giberson in particular, acknowledge that the grievor is a better than
average teacher in the classroom. It is the College’s contention that in fact, Mr. Giberson has
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been very supportive of the grievor. However, Mr. Giberson maintains that the grievor is difficult
to manage, does not easily accept approaches and methods that do not accord with his own
preferred way of doing things, and that he has become more and more combative and non-
collaborative. Despite that, Mr. Giberson claims he had tried to accommodate the grievor ’s
wishes on numerous occasions and has tried as well to accommodate his personal situations on
a regular basis.
In the Union’s opening statement, counsel highlighted a number of points that he would
rely on in establishing the basis for the grievances. Those points included the following:
1. It is the Union’s contention that Mr. Giberson routinely ridiculed the grievor in front
of his colleagues. As an example, during a presentation by McGraw-Hill, the grievor
had a number of comments and questions. According to the grievor Mr. Giberson
interrupted him and told him to “get it through your thick skull …”.
2. In meetings with the grievor, Mr. Giberson would invariably be confrontational.
3. In one incident, a student appealed a failing grade that the grievor had given a
student. Mr. Giberson felt that the appeal should be upheld although the grievor
disagreed. According to the grievor, Mr. Giberson concluded their exchange by stating
that “this could be your last rodeo cowboy”.
4. The grievor was taking a program referred to as a DBA program when he applied for
his position with the college. Indeed, this was one of the factors that made his
application attractive to Mr. Giberson. The grievor informed Mr. Giberson that he
wanted to take a leave from the program due to personal circumstances. According
to the grievor, Mr. Giberson denied his request to take leave.
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5. Mr. Giberson encouraged his teachers to collaborate with each other. According to
the grievor, however, when other teachers did not collaborate with him, Mr. Giberson
did nothing to support the grievor.
6. The harassment of the grievor by Mr. Giberson increased after the grievor began filing
grievances.
7. The grievor had applied for course relief to allow him to continue with his DBA, even
though other teachers had been allowed course relief in certain circumstances. After
the Union assisted he was finally given five hours course relief.
8. In 2016, the grievor was assigned to a course lead position for two courses, but was
not assigned to teach those courses. The grievor grieved and the course lead position
was removed.
9. The grievor had applied for and received tuition relief for his pursuit of the DBA
program. However, after the grievor had filed a grievance as a WRA complaint, the
decision to grant tuition relief was reversed.
10. The grievor claims that during the summer of 2016 Mr. Giberson assigned him work
during his vacation.
11. As the relationship between the grievor and Mr. Giberson deteriorated, the grievor
requested that he be allowed to be represented by two stewards during any meeting
with Mr. Giberson. That request was not granted. The grievor then requested that any
communication between the grievor and Mr. Giberson be conducted only by email.
Again, that request was not granted.
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Needless to say, these points were denied and/or resisted by Mr. Giberson and the College. Some
background information is in order at this point.
The grievor was hired by the College as a partial load professor in 2012 and was hired into
a full time position in 2013. Mr. Giberson has been the grievor’s associate dean during his entire
employment. Indeed Mr. Giberson was the Chair of the hiring committee that was considering
the grievor for employment. According to M r. Giberson the committee had mixed views on
whether to hire the grievor. It was accepted by the committee that the grievor would make a
very good teacher. However, some members of the committee were concerned that the grievor
seemed to be a difficult person to manage. Nevertheless, Mr. Giberson stated that he thought
that the grievor’s ability as a teacher outweighed other concerns and as Mr. Giberson would be
his supervisor, he felt that he would be able to manage the grievor. Mr. Giberson added that an
important consideration in the grievor’s favour was that at the time he was being considered,
the grievor was enrolled in a research DBA (a doctorate program). Mr. Giberson stated that the
College was about to launch a number of Bachelor programs and the DBA program was an asset
for anyone teaching in those programs.
There is no doubt that the grievor is a strong teacher. His performance reviews by
students consistently garner 90% approval. His abilities as a teacher were acknowledged in Mr.
Giberson’s evidence. However, from early on there were difficulties in the relationship between
the grievor and Mr. Giberson. Often those difficulties arose when Mr. Giberson did not agree
with or support the positions or approaches taken by the grievor. For instance in April 2013 Mr.
Giberson was faced with the task of considering the appeal of 2 students of their exam ma rks
handed out by the grievor. In one case, according to the grievor, the student appealed because
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she could not afford to take the course a second time. In the other case, the student claimed that
she should have been given extra time because she suffered from test anxiety. In the first case
the grievor argued that the student did not meet any of the criteria on which a successful appeal
could be based. In the second case, the grievor indicated that it was not up to him to determine
whether the student should have been entitled to extra time. Rather, the student should have
sought an accommodation from the accessible learning centre prior to taking the exam. In both
cases the grievor argued vehemently against granting the appeals and in both cases Mr. Giberson
granted the appeal over the grievor’s objection. The grievor asserts that during the discussion of
the second appeal Mr. Giberson told the grievor that “this could be your last rodeo, cowboy”.
Although Mr. Giberson acknowledged that the discussions were difficult and the grievor was not
relenting on his position, he denied making the comment alleged and stated that such a comment
was not in his vocabulary.
The grievor concluded from these incidents that the student appeal process was broken
and that his input in the appeal process was not valued. Indeed, a common theme that will
become apparent in this decision is that the grievor considers himself to be harassed when he is
not supported in his positions or suggestions in the workplace.
One of the more contentious and serious incidents occurring early in the grievor’s tenure
arose from the grievor’s request to take time off from the DBA program. According to the grievor,
he was going through a number of personal problems in 2014 (including marital problems and
caring for a sick child) and therefore sought permission to take time off from the DBA. It is not
disputed that Mr. Giberson tried to convin ce the grievor not to take the time off. However,
according to the grievor, Mr. Giberson stated in a meeting with the grievor that the grievor was
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only hired because of his enrollment in the DBA and that people who take time off from the DBA
don’t usually complete it. Mr. Giberson then stated that he wanted the grievor to teach in the
Bachelor program and that if he did not complete the DBA, he might not fit in the College’s long
term plans. At the time the grievor was still on probation. The grievor also m aintained that Mr.
Giberson suggested that he speak to the Dean, Sylvia Lowndes, about his disabled child as she
had one as well.
Mr. Giberson has a somewhat different recollection of this matter. First he maintained
that he was not aware of any of the grievor’s personal problems until he met with him regarding
this request. Mr. Giberson did indicate that he was concerned that if the grievor took time off
from the DBA, he might not return. Mr. Giberson offered to reduce the grievor’s teaching
workload, but the grievor did not want that. Mr. Giberson next offered to assign him courses only
at one campus (He was presently assigned at two campuses). The grievor accepted that
suggestion. Mr. Giberson also suggested that the grievor initiate contact with the C ollege’s
employee assistance program. Finally, Mr. Giberson denied suggesting that the grievor speak to
Ms. Lowndes as at the time, he was not aware that Ms. Lowndes had a disabled child.
In any event the grievor was very distraught and crying after leaving the meeting with Mr.
Giberson. He met with a colleague, Mark Weaver and told him what had transpired. Mr. Weaver
suggested that as the grievor was still on probation, he should probably continue on with the
DBA. Mr. Weaver also testified that the grievor had told him that Mr. Giberson suggested that
the grievor speak to Ms. Lowndes about her disabled son.
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It is not suggested that Mr. Giberson prohibited the grievor from taking time off from the
DBA. However, given that the grievor was on probation he decided that it was not prudent to
take time off at that time. However, he did accept Mr. Giberson’s proposal for reassignment to a
single campus. Nevertheless, it is the grievor’s position that Mr. Giberson refusal to appreciate
the grievor’s personal situation and to support his need to take time off from the DBA is part of
the ongoing harassment and bullying of the grievor by Mr. Giberson.
The grievor also relied on an incident which took place at a meeting in June, 2014 that the
parties referred to as the “McGraw Hill meeting”. That meeting was held to discuss a program
referred to as the “grade sync program” and there were approximately 20 -30 people at the
meeting. The grievor had many questions about the program which he raised at the meeting. At
one point, according to the grievor, Mr. Giberson had heard enough of the grievor’s questions
and told him to “get it through your thick skull”. Mr. Giberson stated that he had left the room
distraught. In his evidence, Mr. Giberson denied making such comment at the meeting. No
witness was called to corroborate the grievor’s account of the meeting.
One of the complaints relied on by the grievor concerns a decision by the College to deny
him tuition reimbursement for his DBA tuition. Initially, his application for reimbursement in 2015
was supported by Mr. Giberson. Indeed, Mr. Giberson wrote a supporting letter to the committee
considering the matter in which Mr. Giberson referred to the grievor as an outstanding faculty
member. Initially, the request for reimbursement was granted. However, when the decision was
made to grant the reimbursement the committee was not aware that the DBA program was not
in accounting. When it learned that fact the decision to grant reimbursement was reversed as
the committee maintained that application did not meet the necessary criteria for
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reimbursement. Mr. Giberson maintained in his evidence that he had nothing to do with the
committee’s decision.
There is no dispute that the Mr. Giberson has sometimes found the grievor to b e non-
cooperative and/or non-collaborative. For example, in the fall of 2015 another faculty member,
Victoria Renton, was pursuing an MBA and Mr. Giberson suggested that she sit in on a course
being given by the grievor. Mr. Giberson thought that this would be a good idea as Ms. Renton
would then experience a class given by what Mr. Giberson knew to be a good teacher. When Mr.
Giberson approached the grievor with the suggestion the grievor informed Mr. Giberson that he
did not wish have Ms. Renton in his class. He viewed this request as a reflection of a lack of
confidence in his ability as a teacher when in fact, Mr. Giberson considered it to be the opposite.
During their discussion of this matter Mr. Giberson suggested that the grievor find ways to be
collaborative and not combative. According to Mr. Giberson, the grievor would not accept any
criticism and instead had an answer for every critical suggestion. Shortly afterward a meeting
was scheduled amongst a group of teachers, including the grievor, to collaborate on a course that
they were teaching. The grievor did not attend the meeting because his father was ill. An email
was sent out after the meeting and everyone in the group except the grievor was copied. When
the grievor learned of the email he sent an email noting that he was not copied with the original
message and copied Mr. Giberson so that Mr. Giberson could see that there were others that
were not being collaborative with the grievor. The grievor was disappointed that Mr. Giberson
made no comment to the grievor or the group in response to the email.
As alluded to earlier, a number of the incidents relied on by the grievor concerned
situations in which Mr. Giberson did not agree with an approach taken by the grievor, or would
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not support a proposed action by the grievor. For example, in one instance, the grievor suggested
one half of his class be given one exam and the other half a different exam. Mr. Giberson would
not support this approach.
The grievor attested to another example of what he saw as “non-support” in May 2015.
At that time the grievor had been assigned to develop an intermediate management accounting
course. The grievor had obtained a commitment from a third party publisher to provide lecture
videos for the course. However, the publisher later informed that grievor that it could not fulfill
its commitment to produce the videos. The grievor wanted the College to force the publisher to
fulfill its commitment. However, Mr. Giberson felt that as the College had an ongoing relationship
with the publisher, he did not want to create a conflict and therefore would not force the
publisher to provide the videos.
The grievor also cited instances in which colleagues did not respond to his attempts at
collaboration, and one instance in which he felt a colleague was mocking him in an email. In these
instances the grievor would copy Mr. Giberson with his responses. To the grievor’s
disappointment Mr. Giberson did not intervene to support the grievor in these instances
although the grievor conceded in his cross examination that he did not ask Mr. Giberson to
intervene.
The grievor also cited an instance in which a student was caught with a cell phone during
his exam. The grievor gave the student 0 on the exam as this amounted to cheating. The student
appealed and the appeal was allowed. Again, the grievor felt that he was not being supported
and viewed this as an example of harassment.
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The grievor also complained about an instance in which he was assigned as a course lead
for a particular course, but was not assigned to teach the course. Mr. Giberson explained that he
assigned the grievor the lead position because he understood that the grievor wanted it.
However, he was unable to assign the teaching of a section of the course to the grievor as
teaching assignments for the course had already been determined. In any event the grievor made
a formal complaint about not being assigned to teach the course while he was the lead. As a
result, Mr. Giberson removed the lead position from the grievor’s assignment. The grievor
considered this to be retaliation for his filing the complaint.
As time went on the grievor became more and more distraught and indicated that he no
longer wished to meet with Mr. Giberson unless two stewards were present. When Mr. Giberson
did not agree the grievor requested that all communication between them be by email only.
Again, Mr. Giberson did not agree that he would not meet with the grievor to discuss workplace
matters. Mr. Giberson describes one meeting which took place in May, 2016 in which he tri ed to
compliment the grievor about a presentation that he had made. But the grievor only recalls that
he was tense and would not say anything at the meeting.
Finally, the grievor also complained about an email he received during his vacation in June
2016, in which Mr. Giberson inquired about some course outline that the grievor had been
assigned to. According to Mr. Giberson, he did not know the grievor was on vacation. He also
noted that the course outline was to have been completed before the grievor’s vacation, but had
not yet been completed. He was simply inquiring as to its status.
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According to the grievor all of these incidents constitute harassment an d bullying of the
grievor by Mr. Giberson contrary to the collective agreement. Mr. Giberson denies any such
harassment and bullying. Again, the College submits that he has been nothing but supportive of
the grievor but that the grievor’s attitude and demeanor has raised unique challenges for Mr.
Giberson and indeed, the grievor has been very difficult to manage from the outset. The College
submits that the Mr. Giberson does not have to agree with the grievor in every instance and does
not have to support every approach that the grievor wishes to take. Furthermore, although the
relationship between the grievor and Mr. Giberson may not be as good as it could be, the grievor
does not have the right under the collective agreement, to have the supervisor of his choice.
Article 3.02 of the Collective agreement prohibits “discrimination, intimidation, restraint
or coercion” based on an employee’s activity in the Union including the filing of a grievance or a
workload complaint. Article 4.02 A 4 requires the College “to make reasonable provisions to
ensure that employees are free from bullying/psychological harassment as defined in this
article”. Article 4.02 A 5 defines bullying/psychological harassment as:
… any vexatious behaviour that is known or ought reasonably be known, to be
unwelcome and that:
(a) Adversely affects an employee’s dignity, or psychological or physical integrity
and/or
(b) Takes the form of repeated conduct which could reasonably be regarded as
intending to intimidate, offend, degrade or humiliate and/or
(c) Results in a harmful environment
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Examples of bullying/psychological harassment include but are not limited to the
following:
- berating/belittling an employee or an individual;
- making repeated unwarranted criticism;
- undermining or deliberately impeding a person’s work;
- spreading malicious rumours or gossip;
- making physical gesture intended to intimidate, offend, degrade or humiliate
an employee or an individual;
- making comments that are threatening, derisory or defamatory.
Article 4.02 A 7 clarifies that reasonable action by a manager, supervisor, or any other individual,
including Union representatives is not harassment. Examples of such reasonable action are set
out within the provision and include:
- the legitimate right and responsibility of managers to conduct ongoing
evaluation of employee performance at work, which may include reasonable
criticism of performance and/or may result in reasonable changes to a
person’s assignment as a result of an evaluation.
- …
- respectfully expressing disagreement or reasonably stating a contrary point of
view.
Leaving aside the two derogatory comments (“this is your last rodeo cowboy” and “get it
through your thick skull”), both of which I will deal with shortly. I find that the events described
in the evidence do not establish bullying/psychological harassment of the grievor by Mr. Giberson
as that term is defined in Articles 4.02 A 5 and 7. I agree that the most of the incidents cited by
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the grievor are incidents in which Mr. Giberson expressed legitimate disagreement with the
grievor (as with regard to the student appeals) or in which Mr. Giberson expressed reasonable
criticism of the grievor (by telling him he should be less combative and more cooperative.) Rightly
or wrongly, it is within Mr. Giberson management right to express such disagreement and to level
such criticism in the circumstances described. The collective agreement does not entitle the
employee to a manager who always agrees with him, even if the employee is convinced that his
position is the more valid one.
I also find that the evidence does not establish that Mr. Giberson discriminated against
the grievor because of his Union activity. In particular, the grievor complains that he lost the
course lead position because he filed a workload complaint on the grounds that he was not
assigned to teach the course he was initially assigned to lead. In that regard I accept Mr.
Giberson’s evidence that he assigned the grievor to the course lead position because h e thought
the grievor wanted that assignment. He was unable to assign him to teach the course however.
It was the grievor who asserted that he should not have the lead position being assigned to teach
the course. In these circumstances it was a reasonable management response to remove the lead
position from the grievor as Mr. Giberson was not in a position to reassign the grievor to teach
the course.
I also find no violation in Mr. Giberson’s email to the grievor during the grievor’s vacation.
It was legitimate for Mr. Giberson to ask the grievor about an assignment that was overdue. Mr.
Giberson did not ask the grievor to perform any work on his vacation. In the result Mr, Giberson
did not violate the agreement by sending this email.
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I accept Mr. Giberson’s evidence that he had nothing to do with the denial of tuition
reimbursement and therefore I find no violation of the collective agreement in this regard.
By way of general comment, I accept Mr. Giberson’s evidence that he went out of his way
to support the grievor and to accommodate his concerns. When the grievor sought to take a
leave during the DBA program it is true that Mr. Giberson encouraged him not to do so. However,
he did try to accommodate his personal situation by offering to reduce his teaching load and by
offering to assign him to a single campus. He wrote a very supportive letter to assist the grievor
in his application for tuition reimbursement. He tried to assign him the lead position when he
thought that was what the grievor wanted. But he did not always agree with the grievor or
support the grievor’s decisions. In that regard he acted within his rights as the grievor’s
supervisor.
It may be that the grievor in these situations felt that he was right and that he shou ld have
been supported. However, the grievor did not easily accept Mr. Giberson’s decisions when the
grievor disagreed with him. The grievor may have found these areas of disagreement difficult to
accept. However, from Mr. Giberson’s viewpoint, the grievor’s reluctance to accept Mr.
Giberson’s decisions in circumstances where he disagreed, created challenges for Mr. Giberson
in his ability to manage the grievor.
This brings me to the comments alleged to have been made by Mr. Giberson and which
Mr. Giberson denies. I have no hesitation in stating that if the comments were made, they are of
a type that are contemplated by the definition of harassment in the collective agreement,
particularly when uttered repeatedly and/or as part of a pattern. In that regard I would note that
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unlike the type of discourse that has historically been allowed by arbitrators on an industrial shop
floor, the parties have specifically turned their mind in this collective agreement to the type of
communication that is acceptable in this academic environment. Indeed, derisory, berating and
belittling comments are expressly prohibited as is repeated unwarranted [italics added] criticism.
This is not to suggest that a single momentary comment uttered in a moment of frustration will
always be considered harassment. But the parties (indeed all employees and managers) are
required to keep their level of discourse free from the type of comments expressly prohibited by
Article 4.02 A 5.
I note first, however, that the comment “Get it through your thick skull” was alleged to
have been made in front of 20-30 colleagues of the grievor and none was called to corroborate
that the comment was made. I would also note that Mr. Giberson stated in his evidence that the
language contained in both of these comments were not within his vocabulary. On balance, I am
unable to conclude that Mr. Giberson made the comments alleged. Is it possible that in a moment
of frustration that Mr. Giberson made a comment that was inappropriate? I suppose it is. Mr.
Giberson did concede that at times the grievor would not accept an alternate position very easily
and generally put up a defense against criticism. But the evidence does not make out that Mr.
Giberson made the comments alleged and further, he is aware that such comments are not
acceptable. Even if the “rodeo” comment had been made it is not clear to me that a single
comment made in frustration would amount to violation of the collective agreement in
circumstances where such comment is not reflective if the general tone of communication
between Mr. Giberson and the grievor.
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In summary, I must conclude that the evidence does not establish improper
harassment/psychological bullying or any other violation of the collective agreement as alleged.
Accordingly, the grievances are dismissed.
Dated at Toronto, this 12th day of March, 2018
______________________
Norm Jesin