HomeMy WebLinkAboutBain 18-04-091
IN THE MATTER OF AN ARBITRATION
BETWEEN:
ALGONQUIN COLLEGE (the College)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 415 (the Union)
RE: RODNEY BAIN (the grievor)
2015-0415-0041 AND 2015-0415-0064
Appearing for the Union: Wassim Garzouzi, Raven, Cameron, Ballantyne & Yazbeck LLP
Appearing for the Employer: Jock Climie, Emond Harnden LLP
Sole Arbitrator: Norm Jesin
Hearings Held: February 12 and March 7, 2018
Decision Date: April 9, 2018
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AWARD
The grievor has been employed by the College since 2003 and has been a full time
professor with the College since 2005. He has taught in the College’s Masonry program for the
entire period of his employment. In addition, the grievor has been a Union Steward through the
last two rounds of collective bargaining.
There are eight grievances which are before me and are the subject of this award. In six
of the grievance the gievor has complained that he has been treated disrespectfully and/or that
the College has failed to ensure that it has maintained a safe workplace – free from harassment.
The other 2 grievances deal with a claims by the grievor that he has been disciplined without just
cause contrary to the provisions of the collective agreement between the parties. The grievances
and the facts giving rise to them are more particularly described below:
Grievance 15A71 claims that the grievor was targeted and isolated by his Dean. The basis
for the claim is that the Dean attended two SWF meetings with the grievor in September and
November of 2016. The SWF meetings are held in accordance with the collective agreement and
are part of a process in which the employee and the College attempt to agree on an employee’s
assignment for the upcoming semester and the hours that are to be attributed to that
assignment. The Dean attended the first meeting together with the grievor’s immediate
supervisor. The Dean was the only College representative to attend the second meeting. The
College asserts that the Dean attended these meetings (as well as similar meetings with other
employees) because the Chair, who would normally conduct the meetings, was new and the
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Dean felt his input and involvement was necessary. The College asserts that there is nothing in
the collective agreement forbidding the Dean from attending or conducting a SWF meeting.
Grievance 15A01 is a claim that the College did not allot time on the grievor’s SWF form
for communication with a colleague – Darrin MacDonald. The Union asserts that such
communication was required as the two individuals were sharing a class. The College asserts that
in a previous decision I had already determined that the College was not required to allot any
time to the grievor SWF for discussions with his colleague. Therefore, the failure to allot time
cannot constitute harassment of the grievor.
Grievance 17A16 alleges that the College failed to address a situation in which Mr.
MacDonald is alleged to have “barged” into the grievor’s classroom, without knocking, to retrieve
a student’s belongings. According to the College the student had been informed that there was
a family crisis and Mr. MacDonald was simply quietly retrieving the student’s belongings so that
he could attend to his family situation.
Grievance 17A17 alleges that College was late and outside the collective agreement in its
reply to grievance 17A16. The grievor seeks an acknowledgement that the reply was late and an
apology for the late reply.
Grievance 17A25 is a claim that the College violated the grievor’s privacy when the
grievor’s supervisor asked the grievor was he still with his wife. According to the College the
supervisor was simply asking the grievor whether it was true that he had separated from his wife
(another College employee) out of concern for the grievor.
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Grievance 17A33 relates to a letter of reprimand the grievor received for using an
“inappropriate tone” in an email sent by the grievor. The written reprimand was issued to the
grievor on June 15, 2017 in response to an email sent by the grievor in the grievor’s capacity as a
member of the Health and Safety Committee, to the members of the Committee. The email,
which attached a photo of the workplace which purported to show an unsafe situation on
campus, was addressed to Gerry Salisbury, Chair of the campus. It consisted of the following
comments:
A quick question, what is wrong with this photo? Another question, where is the
instructor? Gerry, how many times have I had to bring this behaviour to your
attention now, I have lost track.
It has been brought to my attention that the Masonry students this year were not
fit tested for respirators, they also received no safety training on a number of tools
that they were expected to use (table saw, circular saws, jig saws, angle grinders
etc. [sic]
Additionally, a number of students were allowed in the Masonry Shop after hours
without supervision.
Some more shining examples of the wonderful safety culture that Gerry was so
fond of remarking on during the Safety Audit Meeting.
The letter of reprimand was issued by Mr. Salisbury. In the letter Mr. Salisbury explained
that the grievor’s email was disrespectful and unprofessional and as such, violated the College’s
Respectful Workplace Policy as well as the Employee Code of Conduct.
Grievance 17A41 concerns a one day suspension that the grievor received for what the
College describes as an inappropriate email. The one day suspension was issued by Chris Hahn,
the Dean of the campus. The suspension was issued as a result of an email sent by the grievor in
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response to a request by Mr. Hahn to attend a meeting to discuss outcomes of a workplace
conflict assessment. The grievor’s email is, in part, as follows:
Chris, as you are well aware, I was not assigned to participate in this Workplace
Conflict Assessment which was a conscious and deliberate decision by College
Management, despite being the person who raised the original complaint. As such
(as stated in my email to Gerry Salisbury dated 2017-05-16) this conflict
assessment is not worth the paper it is written on, and the fact that you are
electing to move forward on these “next steps” just further drives home your lack
of commitment to resolve any of the issues in any meaningful way.
Rather this continued course of action just serves to highlight how truly toxic this
workplace is and continues to confirm your active role in ensuring that it remains
that way.
I will not attend any meeting related to this issue without Union representation,
and as you have chosen to provide almost no notice of this meeting, no Union rep.
will be available to attend. My Union reps have been cc’d on this email and I will
wait to back on their availability.
…
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Grievance 17A49 is a complaint that the College has failed to prevent Mr. MacDonald
from scheduling field trips during the grievor’s classes. In addition, the grievor complains that Mr.
MacDonald entered his classroom with another individual while the grievor was teaching. The
College asserts that Mr. MacDonald was simply giving a tour to an out of town dignitary at the
time.
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 to 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
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;
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- making physical gesture intended to intimidate, offend, degrade or humiliate
an employee or an individual;
- making comments that are threatening, derisory or defamatory.
Dealing first with the complaints of harassment. I find that the allegations are of a petty
nature and do not constitute harassment in any way shape or form. Regarding 15A71, I agree
with the College that there is nothing in the collective agreement preventing a Dean from
participating in SWF meetings in order to assist a new Chair and there is nothing in the Dean ’s
actions in this regard that could be characterized as improper.
Regarding 15A01, I agree with the College that the failure to allot time on th e grievor’s
SWF for speaking with Mr. MacDonald was not harassment. That matter was dealt with by me in
another proceeding and there was nothing improper in the College’s actions in this regard.
Regarding 15A16, although one might prefer that Mr. MacDonald knock before entering
the grievor’s classroom, his reasons for entering were entirely legitimate and there was nothing
improper in the College’s failure to take further action in the circumstances.
Regarding 15A17, the fact that the reply to the grievance in 15A16 may have been beyond
the time limit set out in the collective agreement is self-evident. However, there was no violation
of the collective agreement in 15A16 and the relief requested is entirely unwarranted.
Regarding 17A25, I accept the College’s assertion that the inquiry regarding the grievor’s
domestic status was simply made out of personal concern for the grievor and was not meant to
to violate the grievor’s privacy. Indeed, the inquiry was made directly to the grievor and there
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was no evidence that the supervisor or any other identified individual was spreading protected
private information.
Regarding 17A49, again I accept that the reasons for Mr. MacDonald to enter the grievor’s
classroom were legitimate. It is also my view that if the grievor has any issues with Mr.
MacDonald either scheduling field trips or entering his classroom, he should first take those up
directly with Mr. MacDonald.
Indeed, I find all the complaints raised regarding harassment to be trivial and would be
better dealt with by the grievor engaging in dialogue with those whose behaviour he finds
offensive. Nothing in the allegations fall within the definition of harassment contained in the
collective agreement.
Having regard to my conclusions in this regard, grievances 15A71, 1 5A01, 17A16, 17A17,
17A25, and 17A49 are dismissed.
That leaves the grievances concerning the letter of reprimand and the one day
suspension. In that regard it is the position of the Union that the comments contained in the
emails in question were legitimate criticisms raised by the grievor either in his capacity as a
member of the Health and Safety Committee or as an initiator of a workplace complaint.
I would note that although the provisions regarding harassment and bullying contained
in the collective agreement are inserted to ensure that employees are protected from
harassment and bullying, in my view the definitions of those terms as contained in the collective
agreement as a whole reflect an expectation that managers and employees alike are to refrain
from dialogue which is berating and belittling of any individuals in the workplace. In that regard
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I agree with the position of the College that some of the comments contained in th e emails are
inappropriate. For example, the first email may be seen as an unwarranted personal attack on
Mr. Salisbury. In addition the second email, rather than simply explain that the grievor did not
have sufficient time to arrange for representation to attend the meeting in question, used the
opportunity to accuse Mr. Hahn of deliberately taking an active role to ensure the continuation
of toxic workplace.
The arbitral jurisprudence supports that a wide latitude be given to criticisms and even
insulting behaviour in the context of labour management disputes. However, in this case, I would
note that this is not a case of a momentary comment made in the heat of a labour management
dispute. That was the case in the decision provided to me by the Union in Sault College
(unreported), April 11, 2016 (Stout, Burke, Murray). In that case a manager called an employee a
“jackass” during a meeting and later issued an apology for those remarks. The arbitration panel
determined that those comments were made during a confidential meeting to discuss the
College’s finances and potential layoffs. The Board determined that in the context of the
confidential meeting the comments were privileged and it would not consider them. The Board
also noted in such meetings positions could become heated and the parties should be
encouraged to have a free and open dialogue.
In this case however, the grievor has shown a proclivity to go beyond mere criticism of
management but to engage in personal attacks belittling individual managers. Furthermore,
these comments are not made in the heat of the moment but are made in writing and in the case
of the first email is sent to other members of the committee. While I do think latitude should be
given for employees, particularly acting in an official capacity with the Union, to criticize
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management actions or policies, I also think that both sides should expect that criticism be free
of belittling personal attacks or insults.
Nevertheless, I do think that it would have been appropriate for the College to first convey
its displeasure with the first email and to convey its expectation to the grievor without issuing
formal discipline. I also am of the view that while each of the emails in isolation, would not have
warranted discipline by themselves, I am of the view that it is appropriate to the tenor repeated
by the grievor in the two emails. As a result it is my view that the one day suspension should be
rescinded and that the discipline for both incidents be combined into a formal repr imand.
Accordingly it is my award that the reprimand and one day suspension be rescinded and
that a single reprimand regarding both incidents be substituted. The College is directed to
compensate the grievor for any lost wages resulting from the suspension.
I remain seized to deal with any difficulty in implementing this award.
Dated at Toronto, this 9th day of April, 2018.
______________________
Norm Jesin
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