Loading...
HomeMy WebLinkAboutOpatowski 18-07-30IN THE MATTER OF AN ARBITRATION UNDER THE ONTARIO LABOUR RELATIONS ACT BETWEEN: SENECA COLLEGE OF APPLIED ARTS & TECHNOLOGY (“the Employer”) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 560 (“the Union”) GRIEVANCE RE KEITH OPATOWSKI OPSEU File No. 2017-0560-0010 AWARD ARBITRATOR: BARRY STEPHENS FOR THE EMPLOYER: EMPLOYER COUNSEL: DANIEL J. MICHALUK, Hicks Morley Hamilton Stewart Storie FOR THE ASSOCIATION: UNION COUNSEL: LESLIE GILCHRIST, OPSEU Grievance Officer HEARING HELD IN RICHMOND HILL, ONTARIO ON JUNE 6, 2018 AWARD Introduction [1] The grievor received the lowest form of discipline, a letter of reprimand, for “inappropriate” and “unacceptable” email communication with a colleague. [2] The details of the email changes that led to the discipline are not in dispute, indeed it is all in writing. The grievor is a full-time professor in the School of Information and Communications Technology (SICT), and he teaches a networking course designated as DCN286. On April 23, 2017, Suzanne Abraham, the Manager of Academic Programs for SICT sent an email, copied to all professors teaching DCN286, requesting that they share their course materials with each other in order to “ensure all are up to date on the course”, noting that there were some new professors. This was a standard request made prior to a new semester. [3] On May 1, the grievor sent an email to Ali Abdulsattar Hussein, copying all of those copied on the original email, including Abraham, stating the following: “Hi Ali, I just read the course schedule can you tell me how you came up with this and your experience and certification in this courseware. Given my experience I find it very poorly designed.” Hussein, it should be noted, was a [part-time DESCRIBE HIS STATUS] professor. Hussein responded politely to the grievor’s request, stating his course was based on the outline and materials received from the college, and asked the grievor to provide his input. [4] The grievor responded to Hussein: 2 “Hi Ali, This is the first I have seen that schedule and to my knowledge we have always used the one that I gave to the college a number of years back. In addition, it is the job of the course co-ordinator to make updates, changes etc. The college use[d] to give extra time or extra pay for these duties but cancelled that compensation awhile back so these duties have largely went undone. When you say Seneca gave you the material can you give me the person’s name. And Ali you still have not answered question about your background in this area could you forward that with your next reply. If you do not have the skill set to teach the course I am sure the college will arrange for you to take any upgrade course you would require to do this position. Thanks, Keith.” [5] Hussein responded to the grievor’s second email with some information about how he got the material upon which he based his course design, suggesting that the grievor had failed to assist in the process because he objected to the fact that the college no longer compensated for the coordinator duties. He again asked the grievor for his input on the materials, and added the following comments: “I submitted my qualifications and experience before I started teaching at Seneca, you can talk to your chair in this regard. I believe that I taught the course properly in the last semester. With all respect to you, the statements of arrogance do not show respect to others.” [6] As a result of the email exchanges set out above, the grievor received a written warning. The union asserts that there was not just cause for discipline. Evidence [7] Marie Lynn Manton is the Chair of the SCIT. She has supervised the grievor since 2011. She testified that the email that started the exchange set out above was a standard communication sent to professors teaching the same course to ensure collaboration and communication. She testified that her concern about the grievor’s emails to Hussein was that the grievor questioned the qualifications and expertise of another professor. She stated that she did not want such exchanged to take place among faculty, and she wanted all staff to speak directly to her if they had any concerns about other faculty. She denied 3 that the prior workload grievance filed by the grievor was relevant to her decision to impose discipline. [8] Manton also testified about an issue involving the grievor in March 2-17, where he was counselled for objecting to being assigned the task of updating the covering sheet of an exam paper. In that exchange, which was copied to another staff member, the grievor suggested the task be assigned to the other staff member, stating, “I never see her that busy.” Manton testified that she spoke to the grievor about this incident, advising him that if he had any concerns about his colleagues he should speak directly to her about them, and not put his opinions in disrespectful emails that are copied to others. She testified that her decision to discipline the grievor in March was motivated by the fact that she had counselled him about the same behaviour in March. [9] In cross-examination, Manton confirmed that she had counselled Hussein about respectful communication as a result of the email exchange with the grievor, advising that he should speak to her directly about such issues. However, she stated that she did not have concerns about Hussein stating in the email that the grievor was “arrogant”, but was concerned about the fact that he had copied that comment to other professors who were teaching the course. Manton agreed that the grievor’s comments had not caused any interference with the operation of the programs in the department or prevented Hussein from doing his job. She agreed that the grievor had no formal responsibility over Hussein, and that when she asked the grievor to cease the email exchange he had done so. She 4 did not agree that her concern about the previous incident in March was only with respect to the content, stating that she was concerned about the tone of the grievor’s comments. [10] The grievor testified the he has been reporting to Manton for 8 years. He stated that after filing a workload complaint the relationship had deteriorated, that information was not as “free flowing” and he worked in a more “strict environment” in comparison to the more casual relationship that had existed previously. He testified that his difficulty with Hussein’s email was that Hussein’s course outline did not “jive” with what had been taught in the previous semesters. He stated that students taking such a course, would not have been adequately prepared for courses that followed. He testified that he just responded to everyone on the original email. He asserted he had no intention of insulting Hussein, stating that he has special training and certification in the course material and that he was trying to find out where Hussein stood in his certification process. He stated that he wanted to avoid the trouble that would be caused by allowing a flawed outline to go forward. The grievor stated that if any similar issue came up again he would speak to the individual in person. The grievor testified that he was “very upset” that Hussein called him “arrogant”, given that his only motivation was to “help a fellow colleague.” [11] With respect to the March incident, the grievor testified that the issue he raised was that he and other professors were too busy to update the exam cover page, and that Manton appeared to accept that was the case and told him to provide the cover page later. He stated that he did not recall any discussion with Manton about the tone of his email or that he had communicated inappropriately about the issue. 5 Employer Submissions [12] The employer submitted that the grievor had been disciplined for engaging in disrespectful dialogue in the workplace. This was behaviour the employer wished to put a stop to before it escalated. The grievor was a senior professor who had launched an unnecessary personal attack on a newer partial-load professor before a group of his colleagues and peers. The employer argued that it was not clear from the grievor’s testimony that he actually understands or admits that his behaviour was improper. [13] The employer argued that the union’s allegation that the discipline was based on the grievor’s workload grievance was based on the timing alone. That case dates back to January 2017. The grievor filed a grievance in 2014, and there is no suggestion he was treated improperly after that grievance. In addition, the employer took no disciplinary action against the grievor for the incident in March. The employer submitted the grievor’s retribution argument should be dismissed on the evidence. [14] The employer also addressed what it characterized as the “soft pedaled” allegation that the grievor had been subject to harassment. The employer submitted that there was no credibility to any allegation of harassment, and the case was solely about whether the grievor engaged in inappropriate communication. [15] The employer argued that the grievor attempted to portray himself as the victim in the exchange but asserted that Hussein’s responses were a justifiable defense by a less 6 powerful employee, and a fair and warranted description of the grievor’s communication. While it was unfortunate that Hussein was put in the position to respond in such a manner, the grievor was being arrogant and had invited that description by his actions. [16] The employer relied on Art. 4.02 A4, which stipulates that the College has a responsibility to: “…make reasonable provisions to ensure that employees are free from bullying/harassment as defined within this article.” Art. 4.02 A5 stipulates that bullying and harassment include “berating/belittling an employee”, and “making repeated unwarranted criticism.” Art. 4.02 A8 also makes it clear that bullying and harassment are disciplinable offences. For these reasons, the employer argued the grievance should be dismissed. [17] The employer relied on the following authorities: Algonquin College, [2018] CarswellOnt 5406 (Jesin); Sheridan College, [2018] CarswellOnt 3702 (Jesin); Sheridan College, [2016] CarswellOnt 21897 (Howe). Union Submissions The union argued that not every discourtesy, momentary flare up or interpersonal friction should attract discipline, and that the case was about the quality and the quantity of the grievor’s behaviour. The union suggested that the test should be whether the exchange between the grievor and Hussein interfered with the work in progress in the department, which it did not, and thus discipline was not necessary or warranted. The two employees had a relatively minor “skirmish” by email. Both made comments that were not measured 7 and did so publicly. There were, however, no threats, no violence, no challenge to employer authority, no human rights issues, not pattern of long-standing behaviour, not raising of voices, and no refusal to follow direction. In addition, the grievor acknowledges that he could have handled the situation better. The union argued that it does not seem right for Hussein to call the grievor “arrogant.” If the employer’s actions were upheld, the grievor would be required to accept Hussein’s inappropriate statement and move on, but at the same time he would be unfairly saddled with a letter of discipline. [18] The union asserted that the grievor had acted out of concern for Hussein, who he thought might not be adequately prepared to teach the course. The grievor testified that he had not intended to personally insult Hussein. In addition, the two professors were peers on equal footing, and it could not be said that the grievor was misusing his authority. The union argued the discipline was without just cause and the grievance should be upheld. [19] The union relied on the following authorities: ADM Milling, [2017] CarswellOnt 186 (Chankasingh); Vanguard Inc., [2005] CarswellSask 911 (Priel); Horizon Operations, [2000] B.C.C.A.A.A. No. 391 (Coleman); Southern Railway of British Columbia, [1996] CarswellNat 3063 (Moore); Government of British Columbia, [1995] CarswellBC 3166 (Laing); Hiram Walker & Sons, [1973] CarswellOnt 1454 (Adams). 8 Conclusions and Decision [20] As noted above, the union objected to the employer presenting evidence about the incident in March 2017. I allowed such evidence, and I confirm my ruling at the hearing, given that the union had indicated that the grievor intended to assert that he was not previously counselled about email communications with colleagues. [21] I do not accept the grievor’s assertion that the discipline was imposed as retribution for a workload grievance filed in early 2017. The grievor had filed a prior grievance, and there is no evidence of any discipline following that event. Moreover, the grievor engaged in questionable communication with another employee just two months prior to the exchange with Hussein, and he was not disciplined for that event. I find there is no merit to the allegation of retribution. [22] I have concluded that the employer properly disciplined the grievor for his actions in the email exchange with Hussein. The communication with Hussein had the effect of belittling Hussein in front of his peers, and any objective observer would have known that this would have been the result of the communication in question. The grievor had no reason to assess, much less challenge, Hussein’s qualifications in such a public manner. I did not find it a credible assertion that the grievor’s intentions were to uphold the quality of teaching and determine if Hussein needed assistance. He could have easily accomplished those goals without insinuating publicly that Hussein was not qualified to teach the course. The forum in which the questions were posed, and the peremptory tone of the grievor’s words could not but have been insulting and belittling to Hussein. 9 [23] The other factor is that this was not the grievor’s first such incident. The March incident strikes me as demonstrating a similar disregard for how his communications could belittle another employee. The grievor asserted that he was not counselled about the March incident. I do not find his evidence credible on this point. The issue of the insulting nature of his communication was raised with Manton by the other employee, and, frankly, the point is so obvious it is unlikely any manager would have ignored it. I accept Manton’s evidence that she discussed this issue with the grievor and counselled him not to engage in such communication. [24] In my view, publicly suggesting that another employee is unqualified is not only arrogant, it is insulting, and belittling. Hussein should not have been addressed in such a manner in the email exchange. I do not find that the grievor was treated unfairly in comparison to Hussein. Leaving aside the issues of provocation and fair comment, Hussein was counselled not to engage in such communications, in the same way that the grievor was counselled after the incident in March. [25] In my view, the test for bullying and psychological harassment set out in Art. 4.02 is not limited to instances where an exchange impedes ongoing work. It includes belittling an employee, especially when that is done more than once. Quite apart from the collective agreement provision, the employer has a legitimate right to stipulate that communications between employees be conducted in a respectful manner, and good reason to ensure this happens before poor communication leads to conflict in the 10 workplace. The grievor engaged in behaviour contrary to Art. 4.02, and contrary to minimal standards of professional discourse. Moreover, he did so after being previously advised that such communications were unacceptable in the workplace. His actions warranted discipline, and the letter of warning was not a disproportionate response. The grievance is dismissed. _________________________________ Barry Stephens, Arbitrator July 30, 2018