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HomeMy WebLinkAboutAhamed 23-04-27IN THE MATTER OF AN ARBITRATION BETWEEN: HUMBER COLLEGE ("Humber") and ONTARIO PUBLIC SERVICE EMPLOYEES' UNION ("Union") AND IN RESPECT OF GRIEVANCES OF JENNIFER AHMED Stephen Raymond Arbitrator Appearances for Humber: Nadine Zacks Counsel Alia Rashid Counsel Vin Berman Client Services Elana Lewis Manager Azieb Musa-Habtu Site Supervisor Onkar Chopra HR Business Partner Kayla Small HR Business Partner Nishal Nair HR Business Partner Tanya Andrade HR Generalist Appearances for the Union: Allison Vanek Grievance Officer Jennifer Ahamed Grievor A hearing was held via Zoom on February 4, 2021, April 25 and 27, May 6 and 31, June 6 and November 28, 2022. DECISION Introduction 1. Jennifer Ahamed is a committed advocate for the health and safety of herself and her co-workers. She works for Humber College ("Humber") at its North Etobicoke Workforce Centre ("the Centre") as an Employment Advisor. Her work site is off - campus. Humber rents space on the second floor of a strip mall at 1620 Albion Road. This decision is about her three grievances. 2. The first grievance is dated December 1, 2017. It is substantially about two separate things. The first is whether the work environment is unsafe. The second is whether Jennifer Ahamed has suffered reprisals because of her health and safety advocacy. In addressing the first issue, I will review the workplace generally, the five specific workplace incidents on which the grievance was based and the applicable legal principles to determine whether the workplace is unsafe. In addressing the second issue, I will review the circumstances of the alleged reprisals as well as the applicable legal principles to determine whether Jennifer Ahamed has suffered reprisals for her health and safety advocacy. In the result, I find no violation of the collective agreement and dismiss grievance one. 3. The second grievance is dated June 8, 2018, and relates to Humber interfering in Jennifer Ahamed's communication pertaining to health and safety. This grievance involves one incident. In that incident, Jennifer Ahamed replied to an email sent to her and added the worker co-chair of the College -wide Joint Occupational Health and Safety Committee. Humber objected to her reply to the email and brought her into a meeting alleging that Jennifer Ahamed's reply violated the appropriate protocols that had been put in place for her, and others, to address health and safety concerns. Calling Jennifer Ahamed into a meeting to discuss this matter was an overreaction to what had occurred and unduly escalated the incident. Accordingly, I accept the grievance and remit it back to the parties for remedy. If they cannot agree, I remain seized. 4. The third grievance is dated February 25, 2019. There is a dispute about the scope of the grievance. The grievance itself has a very narrow focus as it states that there 2 was a failure to provide Union representation for Jennifer Ahamed. Humber says that is the entire scope of the grievance. The Union counters that the grievance was particularized on November 13, 2019, and it asserted then that the grievance was also about bullying, harassment and reprisals. Regardless of my decision on the scope of the grievance, the result is the same. The grievance is denied. The meeting that Jennifer Ahamed attended without union representation was non - disciplinary. It is a fact that given the nature of what the meeting was about, Jennifer Ahamed should have had union representation. Because she did not, the Employer would be prohibited from taking any disciplinary action as a result of the meeting. There is no failure to provide union representation if there can be no discipline arising from the meeting. If the scope of the grievance was expanded as the Union asserts, I still would have dismissed the grievance as based on a review of the incident, there was neither bullying, harassment or a reprisal. Grievance one — Unsafe workplace and reprisals for health and safety advocacy a. The Workplace Generally 5. Jennifer Ahamed has worked for Humber since 1993. She has been in her present position as an Employment Advisor at the Centre since 2010. She is one of four Employment Advisors who work at the Centre. Her direct supervisor, Azieb Musa-Hatu, is on site. Her manager, Elana Lewis, is responsible for four other Centres and is situated off-site. 6. Jennifer Ahamed is the worker health and safety representative for the Centre under the Occupational Health and Safety Act ("OHSA"). In carrying out her statutory duties, she is responsible for conducting monthly safety inspections of the Centre. At the time of this grievance, Humber had one joint health and safety committee for the entire College. 7. The Centre is located on the second floor of a strip mall at 1620 Albion Road. The neighbourhood in which the Centre is situated is one of the thirteen neighbourhoods in the City of Toronto that have been designated as "high risk". Humber rents the space. It is open to and serves the public. The purpose of the Centre and for those who work there is to meet with jobseekers or those seeking education to assess their skills and make a plan. Before the onset of the pandemic 3 in 2020, it would have about 10,000 visitors per year. 8. There is an unfortunate history of members of the public using the Centre and, in particular, its computers for purposes other than the use intended. It is not uncommon for there to be loud aggressive persons who are in the Centre and sometimes those persons have become violent. There is a designated safe space for employees within the Centre which is the kitchen. It is not an area to which the public is to have access. b. The Five Incidents 9. Incident one occurred on March 22, 2017. A client approached Jennifer Ahamed twice about ten minutes apart and this startled her. The first time was when she was in the kitchen. The second time was near her office door which the client opened abruptly and unexpectedly. There was no physical contact. There were no threats. 10. All the Employment Advisors carry panic buttons. Jennifer Ahamed chose not to use the panic button in this incident. Had she, which we learn from a subsequent incident, security would have likely arrived quickly. 11. The Employer has a department of public safety. A representative of tha department attended the Centre a day later to review the incident and address any safety issues identified. This included a review of the existing safety protocols. 12. Incident two occurred on July 20, 2017. Two clients were in a conflict with each other. It was suggested that someone should call the police. Management decided not to and advised that if police were called the clients should do it themselves. The grievor was not present for this incident. Police were called, arrived quickly and the workplace parties debriefed about the incident on that date. As stated, Jennifer Ahamed did not witness this altercation or the arrival of the police. She learned of it in her role as a health and safety representative as there was an incident report created and one of her functions as a health and safety representative is to review all incident reports. 13. Incident three occurred on October 23, 2017. One of the clients who took part in incident two was being loud and aggressive. Police were called. The manager happened to be present. She tried to talk to the client and persuade C! him to leave. He refused and the police escorted him out. He was given a trespass notice. He returned a few hours later in violation of the notice. The manager, again, was present and she tried to deescalate the situation. The client left on his own volition. From the perspective of Jennifer Ahamed, the client uttered a threat to the manager before leaving. The manager testified that she did not consider it to be a real threat. Jennifer Ahamed filed an incident report on November 1, 2017. Among the things mentioned in that incident report is her concern that there had, more than a week later, still not been a debriefing. The police did debrief with the workers in the Centre, including Jennifer Ahamed, ten days after the incident. 14. Incident four occurred on November 9, 2017. Jennifer Ahamed asked a disruptive client to leave. After he was outside the Centre, he banged aggressively on the glass. Jennifer Ahamed pressed the panic button and security arrived within one minute. There were no injuries. Video surveillance was reviewed, and a picture of the client was obtained and shared with staff. Both public safety and the police conducted debriefs with all involved. The police indicated that the College had dealt with the situation perfectly. 15. Incident five occurred on November 27, 2017. A client was using loud and vulgar language. Jennifer Ahamed called the police. Police arrived in three minutes. The police de-escalated the situation. There were no injuries. 16. This grievance was filed on December 1, 2017, because of the concerns of Jennifer Ahamed that her workplace was not safe. 17. In determining the grievance, Humber has an obligation to take every precaution reasonable in the circumstances for the protection of a worker (OHSA, section 25(2)(h)). 18. Humber argues that it has had a comprehensive response to these incidents. In each case, there was a debrief with the employees involved to assess what occurred in the incident and what may be learned to prevent further instances. Sometimes Humber involved its public safety department. When police had attended at the incident, they led the debrief with employees. 19. At the time of the grievance, a safety audit had commenced. There were efforts to block websites to discourage the misuse of the Centre's computers. 5 20. Humber had panic pendants for all employees to wear or carry. If the pendant was activated a signal was sent to Chubb Security. If there was no response, the police were summoned. In the one incident where a pendant was activated, the response occurred as designed. 21. Humber also instituted a series of hand signals that it taught its employees to use in circumstances that warranted it. Further, there was a list of emergency phone numbers readily available for use. 22. Finally, a co-worker of Jennifer Ahamed's testified and asserted that she felt safe in the Centre. 23. The Union argued that the five incidents make it clear that the workplace is unsafe, and that Humber has not taken every precaution reasonable in the circumstances for the protection of a worker. 24. It argued that the precautionary principle is the basis on which OHSA is to be considered. That is what precautions should the employer take to protect against the unknown. In this circumstance, the unknown is the unreliable nature of humans who come to the Centre. The incidents underline this concern and the precautions suggested by Jennifer Ahamed ought to be considered to be reasonable. 25. In determining whether the workplace is unsafe, I must consider the nature of the workplace. As set out in Grain Workers Union, Local 333 v. B.C. Termination Elevator Operators' Assn., (2001) 63 C.L.A.S. 157 at paragraph 78: Obviously not all risk can be eliminated from the workplace and the assumption of the level of risk inherent in a particular occupation is a decision to be made by the employee when he seeks or continues employment in that industry. It is in that context that it is no answer for an employer to say there was risk. 26. As well, arbitrators have considered the obligation to make the workplace safe particularly in the context where the workplace is one where the public is served. In OPSEU and Ontario(Ministry of Community and Social Services), O.G.S.B.A. No 173, the Board set out the following standard: 1. There is no obligation on the employer to guarantee an employee's safety against every possible risk, no matter Gi how remote the possibility that it will occur; 2. It is necessary to balance the safety of the employees against the operational needs and purposes of the institution or program in which they work, and 3. Proper planning can reduce the potential or likelihood of incidents, but it is not possible to eliminate all conceivable risks. 27. The Board also commented as follows An Employer, under both the agreement and the statute, does not have to take steps to guarantee an employee's health and safety against all possible or conceivable risks, no matter how remote they may be. The Employer, instead, is bound to make reasonable provisions under the former, and to take reasonable precautions under the latter, so as to provide the appropriate level of protection to employees. The test is one of reasonableness which, necessarily, requires consideration of a multitude of factors. I also accept that, in resolving the type of issue now before me, an objective standard must be used. 28. Accepting that as the test to be applied, I find that Humber responded appropriately to each of the five incidents set out above because it was taking every precaution reasonable in the circumstances for the protection of the employees. The Centre is open to the public. It is in a "high risk" neighbourhood. It serves members of the public seeking assistance in finding work. Given all that, it needs to be open and accessible like other public buildings such as a library or a community centre. All these public buildings could be operated in a more secure way like a correctional facility, but that is neither sensible or appropriate. Given the public service that Humber is providing and keeping in mind its obligations to keep its employees safe and healthy, the steps it took were reasonable. I find that Humber has met its obligations under both OHSA and the collective agreement to take every precaution reasonable for the protection of its workers, including Jennifer Ahamed. c. The Reprisals 29. The second part of this grievance is that Jennifer Ahamed asserts that she has suffered reprisals from Humber for her health and safety advocacy. 7 30. The test for whether a reprisal has occurred is well set out in Milka Cavic v. COPE, Loc. 905, 2022 CanLii 5015. At paragraph 28, the Board sets out the test: 28. In Honda of Canada Mfg., 2012 CanLll 78331 (ON LRB), the Board set out the test for determining whether an applicant has pleaded a prima facie case in an application under section 50: [27] An application under s. 50(1) must satisfy two elements. First, the applicant must assert that he was discharged, disciplined, threatened with discharge or discipline, was subjected to a penalty, intimidated and/or coerced. Second, the applicant must allege that this activity of the employer was a direct result of acting in compliance with, or seeking the enforcement of, the Act or regulations or giving evidence in a proceeding in respect of the enforcement of the Act or regulations (or an inquest)... 29. In Seyed amn v. Ahmed Abdi — Manager at TTC Occupational Health and Safety, 2021 CanLll 80977 (ON LRB), the Board adopted the test set out in Honda and further clarified at paragraph 26 that "[t]here must thus be a causal connection between the reprisal and the worker's exercise of rights under the Act. 31. Jennifer Ahamed testified that she has suffered a series of reprisals. 32. Jennifer Ahamed complained in May 2017 that she was denied two days of personal leave. Humber contended that the denial was in accordance with the provisions of the collective agreement as Jennifer Ahamed had not satisfied the collective agreement criteria for personal leave. 33. Jennifer Ahamed complained in April 2018, that she was denied tuition support. Humber contended that the tuition support was denied because Jennifer Ahmed was enrolled at an unaccredited institution. 34. Jennifer Ahamed complained in October 2018 that she was denied the ability to claim sick leave while on vacation. Humber contended that the denial was in accordance with the provisions of the collective agreement as Jennifer Ahamed had not satisfied the collective agreement criteria for claiming sick leave while on vacation. 35. Jennifer Ahamed complained that she was not given the regular turn of creating minutes for a group meeting. The date this occurred was unspecified in the evidence but she testified that it was related to a date for an arbitration hearing. R1 Humber contended that the meeting was cancelled for all and that Jennifer Ahamed had a chance to take the minutes at the next meeting. Evidence of her taking minutes for a meeting in January 2019 was tendered. 36. Jennifer Ahamed complained in October 2018 that her 2017 performance appraisal was not signed by a specific Humber official. Humber contended that the reason it was not signed is that Jennifer Ahamed had included health and safety concerns in it. Doing so, in Humber's view was not appropriate. 37. The test for whether there has been a reprisal is set out above. There must be a penalty and there must be an exercise of a right. Further, there must be a causal connection between the two. Normally, a penalty is thought to be some sort of disciplinary action by an employer. Here there are no such penalties. I do think that denials of entitlements, if not properly justified, can be considered to be a penalty. So the denials of tuition support, personal leave and sick leave could be considered to be penalties. The skipping of minute taking and not signing a performance review are not penalties. I do not accept that any of the denials set out above were unjustified and could be considered to be a penalty. Had I considered them to be a penalty, I would not have found them to be acts of reprisal because there is no causal connection made between the alleged acts of reprisal and the alleged penalties. It is for these reasons that grievance number one is dismissed. Grievance two — interference in health and safety advocay 38. Grievance two is dated June 8, 2018 and involves an allegation that the Employer interfered in Jennifer Ahamed's right to communicate health and safety information. An email was sent on April 20, 2018 to Jennifer Ahamed and others from her supervisor with the subject line "enhancing safety". From that email, Jennifer Ahamed learned that her site supervisor and her manager responsible had met with VP Protection Inc. to discuss additional security measures. 39. Jennifer Ahamed replied to the email on May 7, 2018. While doing so, she added the worker co-chair of the College -wide health and safety committee. She also changed the subject line adding the words "Safety Concerns" and the P address of the Centre where she works. She also added a commentary on incidents that had occurred since the original email was sent on April 20, 2018. Humber objected to this being done and called her into a meeting on May 28, 2018. 40. Jennifer Ahamed objects to being called into the meeting and believes that doing so was an attempt by Humber to muzzle her and her health and safety complaints. 41. While I am of the view that Humber was simply trying to ensure that her health and safety concerns were raised through the proper channels whether she was raising them as a worker or as a health and safety representative of workers, escalating this to a meeting that involved human resources and union representation for Jennifer Ahamed was an over -reaction by Humber to what Jennifer Ahamed had done and I believe that she genuinely believed that doing so sought to muzzle her health and safety advocacy. Accordingly, I accept the grievance and remit the matter of remedy back to the parties and remain seized. Grievance three — union representation or reprisal 42. Grievance three is dated February 25, 2019. There is a dispute over what this grievance is about. Humber argues that the grievance is only about what appears on the face of the grievance — the failure of Humber to provide union representation to Jennifer Ahamed during a meeting on February 6, 2019. The Union argues that the grievance was further particularized on November 13, 2019 to allege bullying and harassment. 43. The basic facts are not in dispute. On February 6, 2019, Jennifer Ahamed was called into a meeting with her supervisor and her manager. The purpose of the meeting was not disclosed to Jennifer Ahamed in advance. She had no union representation at the meeting. At the meeting, she was asked if she had been discussing in the workplace the accommodations of others. She denied that she had. She felt intimidated in the meeting. 44. Humber had a choice in respect of the meeting. It could have considered that the interview of Jennifer Ahamed may lead to disciplinary consequences and 10 provided her with the right to union representation. This would have been the best choice. That way, had Humber decided that disciplinary consequences were appropriate, it could have proceeded. Having chosen, as it has the right to do, to interview an employee without union representation, Humber was precluded from taking any disciplinary action against Jennifer Manned no matter what Humbe learned at the meeting. 45. As stated, there is a dispute about the scope of the grievance. On November 13, 2019, a previous counsel for the Union wrote to Humber and asserted: The Grievor takes the position that this conduct constitutes bullying and harassment in violation of article 4 as well as the Occupational Health and Safety Act. The Grievor takes the further position that their conduct during the meeting constitutes reprisal for he many years of involvement as an employee representative on the joint occupational health and safety committee. 46. As is set out above, the test for a reprisal is that there must be both activity protected by OHSA, a penalty suffered by the employee and a causal connection between the two. 47. 1 find on a review of the meeting notes and the testimony that I heard that there was, in fact, no bullying or harassment present at the meeting. The managers conducted themselves professionally. For there to be a reprisal, there must be a penalty. Something must be taken away. Nothing has been taken away from Jennifer Ahamed on the facts of this grievance. 48. The third grievance is dismissed whether it is about only union representation or it was properly expanded to include a complaint of bullying and harassment. DATED at Toronto this 27t" day of April, 2023. Stephen Raymori 11