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HomeMy WebLinkAboutBain 21-07-19 IN THE MATTER OF AN ARBITRATION PURSUANT TO THE LABOUR RELATIONS ACT, 1995 BETWEEN: Algonquin College (Employer) - and - Ontario Public Service Employees Union, Local 415 (Union) Grievance of Rodney Bain _________________________________________________________________________ Arbitrator: Michelle Flaherty Date: July 19, 2021 _________________________________________________________________________ APPEARANCES For the Employer Jock Climie, Counsel Kyle Shimon, Counsel Christopher Hahn, Dean of the Perth Campus Erin Langevin, Director of Employee and Labour Relations For the Union Morgan Rowe, Counsel Claire Michela, Counsel Patrick Kennedy, Former local president JP Lamarche, Steward Rodney Bain, Grievor 2 AWARD 1. This matter concerns the termination of the grievor’s employment. From 2003 to September 6, 2018, Mr. Bain worked as a professor in the Heritage Carpentry and Masonry program at Algonquin College’s Perth Campus. 2. In March of 2018, the College received a written complaint about the grievor, signed by the “masonry students.” Among other things, the complaint alleged that the grievor behaved in a patronizing and condescending manner towards students. 3. The College obtained recordings of approximately ten classes, which the grievor taught in the spring semester of 2018. The recordings were provided by a student, who testified that they were representative of Mr. Bain’s conduct throughout the 2017 – 2018 academic year. This aspect of the student’s evidence was not challenged on cross-examination. 4. The recordings establish that Mr. Bain made the following comments to students in his classroom: a. “That’s what happens when you don’t do it on time, eh, stunned fuckers.” b. He called one student “a lazy prick” c. He called another student “a lying sack of shit” d. “I’m handing out two things today, Nolan, and that’s lollipops and ass kickings, and I’m fresh out of lollipops.” e. He described Newton’s third law by saying “like when I come over there and punch you in the face, your face is also punching my hand.” f. When a student described “compression” as “when you squeeze two things together.” Mr. Bain replied “Yeah, there you go. Those two brain cells.” 5. The grievor’s comments would be highly inappropriate in any context, but they are particularly troubling by a teacher in a classroom. Significantly, Mr. Bain was in a position of power and trust in relation to his students: Confederation College and OPSEU, Local 732, unreported (H. Brown) at p. 30; and St Clair College v Ontario Public Service Employees’ Union, 2012 CanLII 61746 3 (Parmar) at para. 86. His whole purpose in the classroom was to promote student learning. Yet Mr. Bain treated his students with contempt. He referred to them in disparaging and demeaning ways. He singled out certain students and ridiculed them in front of their peers. It is deplorable that a professor would treat to students in this way. 6. Professors have a clear and basic obligation to treat students with respect. The College’s Respectful Workplace Policy states: Algonquin College is committed to fostering a climate in which all individuals are treated with respect and dignity and in which the human rights of its employees, contractors and volunteers are respected. Harassment and discrimination will not be tolerated by the College in its education, employment or business dealings. 7. The grievor expressed remorse for his classroom comments, both during his testimony at the hearing and during an interview with a workplace investigator, prior to the termination of his employment. At the hearing, Mr. Bain explained that he was disappointed and “shocked” by his own behaviour. 8. In considering the weight to give to the grievor’s expressions of remorse, it is important to consider the context and stage at which they were made. When initially advised of the student complaint, including allegations that he had behaved in a condescending and patronizing manner, the grievor emailed the Academic Chair. He complained of a lack of particulars and indicated that the “proper process” was for the students to bring their concerns to him directly. 9. On April 4, 2018, Union counsel wrote to the Academic Chair in further response to the student complaint. Regarding allegations that the grievor had behaved in a patronizing and condescending manner towards students, counsel wrote: This allegation is entirely unparticularized, Mr. Bain is unable to respond to it in any substantive way. In general, Mr. Bain denies that he is patronizing or condescending towards students. Mr. Bain raises specific concerns about being asked to respond to such a vague allegation, particularly where such issues can easily be matters of perception or misunderstandings. 4 10. The grievor is fully within his rights to vigorously defend against allegations of misconduct, to request particulars, and to insist on procedures that are consistent with the College’s policies and the Collective Agreement. In considering the grievor’s expressions of remorse, however, his initial responses are significant. In essence, his remorse was forthcoming only when he learned that the College had recordings, which provided incontrovertible evidence of his misconduct in the classroom. 11. At best, the grievor’s initial denial suggests an extraordinary lack of insight into his own behaviour. At worst, he was untruthful and denied conduct which he had engaged in repeatedly and which he could only have known was disrespectful. The meaning of words like “stunned fuckers” is not a matter of perception or misunderstanding. Disciplinary Record 12. At the time his employment was terminated, the grievor had two previous disciplinary measures on record: a. In December 2013, he received a written warning for directing students to do push-ups when they arrived late for class. b. The grievor was disciplined for disrespectful comments he made in two emails, which he sent to College administrators in 2017. Following an award by Arbitrator Jessin, the grievor was issued a single written warning. Is Termination Just and Reasonable in the Circumstances? 13. There is no dispute that Mr. Bain’s classroom comments warrant discipline. 14. In considering the appropriate penalty, I have relied on the comments the grievor made in the classroom in 2017 – 2018 as well as his previous disciplinary record. I have also considered the particular circumstances that led to this discipline, weighing both mitigating and aggravating factors: Re Wm Scott & Co., 1976 CarswellBC 518 (Weiler). 5 Aggravating Factors 15. For the reasons already expressed, I find that the grievor’s classroom comments constitute serious misconduct. His initial denial of the conduct is an important aggravating factor, as is the fact that these comments were sustained over almost an entire academic year. 16. The grievor has not generally demonstrated a willingness to correct his conduct. Although he testified that he would make changes, his response to previous discipline and his other comments at the hearing suggest otherwise. 17. As noted, the grievor was disciplined in 2013 for requiring students to do push-ups. The College and the Union agreed that this discipline would be removed from the grievor’s record if he wrote to the College, acknowledging that his behaviour was inappropriate and confirming that it would not be repeated. The grievor declined to do so and the discipline has remained on file. 18. Mr. Bain was, of course, under no obligation to write to the College. As I consider his potential for rehabilitation, however, it is telling that he failed to acknowledge wrongdoing or effectively take responsibility for his conduct at that time. While Mr. Bain has not repeated this specific behaviour, his comments in the classroom in 2017 – 2018 are a further and more pronounced example of his disrespectful treatment of students. 19. Following a decision by Arbitrator Jessin, the grievor received a written warning for sending disrespectful emails in 2017. At the hearing before me, the grievor testified that he accepts the Jessin award, but still believes that discipline was not appropriate in the circumstances. The Union submits that the grievor is not required to agree with the arbitral award, although he must comply with it. Certainly, the grievor has to live with the discipline that was imposed by the arbitrator. However, the fact that he maintains that discipline was inappropriate gives me little confidence that Mr. Bain gained insight into his behaviour or is likely to modify it. Mitigating Factors 20. The Union states that mitigating factors exist in this case. The grievor experienced a constellation of particularly difficult personal circumstances in 2017 – 2018, which he says 6 affected and exacerbated his behaviour in the workplace. In future, without these significant stressors, the Union submits that the grievor would be less likely to engage in misconduct. 21. The evidence regarding the grievor’s past conduct does not support the Union’s position. Excluding the grievor’s conduct as a union representative and excluding examples where the facts are in dispute, the remaining evidence establishes a longstanding pattern of disrespectful and inappropriate conduct by the grievor. In many respects, his past conduct is not dissimilar to his behaviour in 2017 – 2018. 22. In one example from 2011, the grievor sent an email to faculty members on an academic appeal committee. The grievor took the position that he was not required to participate in an appeal by one of his students because this task had not been assigned to his standard workload form (“SWF’). It is not clear that the grievor’s position was tenable, as the appeal process unfolded in a period when SWFs are not issued to professors. In any event, the grievor sent the following email to a group of his colleagues: Based on the decisions of this committee, this Appeal has no credibility. For me to continue in any way to participate in this farce would only serve to lend this Appeal an air of objectivity and propriety that it has never possessed. So here is the important part. I will not be attending any meetings, nor will I be responding to any correspondence (written or verbal) that is in any way connected to this appeal. Should I receive any correspondence other than the decision and rationale that is required to be sent to me under Directive AA19, that correspondence will be viewed by me as bullying and harassment, and will be the subject of a grievance. Have a good weekend, and schedule your meetings whenever you like. 23. Mr. Bain was not disciplined or counselled for this communication. I refer to this email, not as justification for the termination, but as an example of inappropriate behaviour that predates the mitigating factors identified by the Union. 24. I am also struck by an incident in 2016, in which Mr. Bain showed disregard for his colleagues, for students, and for the students’ learning experience. 7 25. The grievor and the College had a longstanding disagreement about whether Mr. Bain should be assigned time on his SWF to communicate with his colleague, Darrin MacDonald. The two professors taught a class together, which involved a theory component as well as lab work. Mr. MacDonald taught one section of the lab, while Mr. Bain taught the other. Mr. Bain was responsible for the theory component of the course and for marking the lab work for both sections. The grievor took the position that he was not required to communicate with Mr. MacDonald about students or any aspect of the course because he was not assigned time to do so on his SWF. 26. In the fall of 2016, Mr. Bain set a lab project for students, requiring them to build a wall using imperial measurements. Mr. Bain testified that there were pedagogical reasons for using imperial rather than metric. Mr. MacDonald assigned the project to the students in his section of the lab, but he directed them to use metric measurements. 27. Mr. Bain and Mr. MacDonald shared a shop space and Mr. Bain could have observed the student projects as they progressed. Rather than speak to Mr. MacDonald to ensure that students met the requirements and benefited from the pedagogical value of the use of imperial measurements, Mr. Bain elected to wait until the students had completed the project. He then assigned a failing grade to an entire section of students. He did so on the basis of their use of metric measurements. 28. The grievor testified that he fully expected the administration to step in and modify the grades so that students would not ultimately be impacted. While the grievor’s assumption ultimately proved to be correct, his behaviour in the circumstances seems vindictive and highly provocative. Mr. Bain showed so little regard for the students that he used their learning experience and their grades as a means of making a point to his colleague and to the administration. Other options to address a workload dispute were available to him under the Collective Agreement. 29. Mr. Bain was not disciplined for this behaviour. Again, the incident is not relevant to justify the termination. However, it shows a serious disregard for students and colleagues, which predates the existence of the mitigating factors advanced by the Union. 8 30. In considering the degree, nature, and extent of the grievor’s conduct, there is little material difference between his earlier behaviour and his misconduct in 2017 – 2018. In these circumstances, a reduction of the penalty based on mitigating factors is not warranted. Conclusion 31. The grievor has approximately 15 years of service, which is not insignificant. His previous disciplinary history, although on the lower end of the scale, demonstrates a pattern of disrespectful behaviour. 32. His conduct in the classroom in 2017 – 2018 is highly egregious and amounts to serious misconduct. The grievor’s initial denial of the conduct is an aggravating factor, as is the fact that his comments were sustained over almost an entire academic year. Given the grievor’s attitude and his response to previous discipline, I have no confidence that Mr. Bain will correct his conduct or that he could be returned to the classroom. 33. In my view, termination is fully justified in the circumstances based on the gravity of the grievor’s conduct in the classroom in 2017 – 2018 and his existing disciplinary record. Additional Conduct by the Grievor 34. After it received the student complaint, the College engaged an independent investigator, Jan Parnega. Ms. Parnega was given a broad mandate to investigate “the allegation that the grievor engaged in a pattern of behaviour that created a toxic work environment amongst students, professors and the administration of the College.” 35. The investigation addressed a wide array of allegations, dating from approximately 2007 through to 2018. Ms. Parnega ultimately concluded that Mr. Bain had engaged in a pattern of behaviour that created a toxic environment for students, professors, and College administration. 36. In the letter of termination, the College presented two rationales for its decision to terminate Mr. Bain’s employment: 9 a. The investigator’s finding that Mr. Bain created a toxic work environment for students, staff, and administration. b. Arbitrator Jessin’s arbitral award of April 9, 2018, in which he dismissed six harassment complaints filed by the grievor as “trivial” and “petty.” The College treated these frivolous harassment complaints as further grounds for disciplining Mr. Bain. 37. At the hearing, the College presented considerable evidence about these two issues. The Union submits that the College cannot rely on this evidence to justify the termination. it states that the discipline for the grievor’s harassment complaints is untimely. The Union also submits that the investigator’s conclusions cannot be relied upon because they: (a) result in double discipline; and (a) rely on incidents that occurred up to ten years earlier, for which the grievor was not disciplined at the time. Finally, the Union points to comments that College administrators made to the investigator, in which they were critical of the Union, of certain Union officers, and of Mr. Bain’s own union activities. The Union suggests that these considerations may have improperly influenced the outcome of the investigation and the College’s decision to terminate Mr. Bain’s employment. 38. It is not necessary for me to address these objections. The issue at arbitration is not the accuracy or appropriateness of the investigator’s findings or the employer’s decision-making, but rather whether the discipline imposed is just and reasonable in all of the circumstances: Lakehead University v Lakehead University Faculty Association, 2018 CanLII6283 (Surdykowski), para. 517; Labourers’ International Union of North America v Hydro One Inc, 2018 CanLII 124225 (ON LRB), at para. 39. 39. For the reasons already provided, I have concluded that termination is warranted based on Mr. Bain’s existing disciplinary record and his inappropriate comments in the classroom in 2017 - 2018. Neither of these issues is in dispute. As a result, I do not need to address the relevance or admissibility of evidence regarding other aspects of grievor’s conduct. This would not affect my finding that termination is justified. 10 CONCLUSION 40. The grievance is dismissed. For the reasons set out, above, the termination is fully justified in the circumstances. The comments the grievor made in the classroom constitute serious misconduct and have no place in any workplace, let alone a classroom environment. In all of the circumstances, there is no real prospect that the grievor would correct his behaviour if lesser discipline were imposed. Signed in Ottawa on July 19, 2021. __________________________________ Michelle Flaherty