Document Title:
Guidance Document on Labour Relations Arbitration Case (Union)
Date Authored:
March 4, 2022
Semester:
Winter 2022
Course:
Labour Relations (HRP7215)
Prepared By:
Angelo E. (Peer Tutor – HMPD Program, Cambrian College)
1
STATEMENT OF GRIEVANCE / DESIRED OUTCOME
The union representing Carmen (hereinafter the, “Grievor”), grieves that the shipping company
(hereinafter the, “Employer”) has violated the provisions of the Collective Bargaining Agreement
by failing to ensure a workplace environment that is free from bullying or harassment as defined
under the Occupational Health and Safety Act. The Grievor is currently on stress leave as
authorized by her physician due to the constant psychological harassment that she was
continuously subjected to through the Employer’s direct supervisor to the Grievor, and the
respective department’s other coworkers. The harassment took the form of unwelcome
comments and intimidating innuendos expressed as jokes wherein the Grievor was the target of
all communications expressed. Despite the Grievor’s seniority of over twelve (12) years with the
Employer, and having transferred into the Shipping Department for the last three (3) years, she
has been unfairly singled out on the basis of the inability to accept her coworkers’ unwelcome
and intimidating comments, by her direct supervisor which takes shape as a reprisal from the
Employer. Moreover, due to the Employer’s lack of objective investigations into the Grievor’s
complaints, the harassment she was subjected to daily, has continued while the HR Department
have declined to accept her grievance. These contraventions to the Collective Bargaining
Agreement were identified upon the dismissal of the Grievor’s complaints, all of which require
the need for an independent investigation that stays the course of remaining objective. The
Employer has violated Article 5 (No Discrimination; No Bullying/Harassment), Article 9
(Complaints, Grievances and Arbitration) and may potentially be in violation of Article 23 (Safety
and Health) should there be no co-operation reciprocated in making every reasonable provision
for the safety and health of employees. The remedy we seek is that the Employer fully complies
2
with the above noted articles of the Collective Bargaining Agreement, alongside preparing a
workplace harassment policy, provide Bill 168 training to all employees, in addition to a financial
settlement of fifteen thousand dollars ($15,000) to compensate the Grievor as general damages
for injury to dignity, feelings and self-respect (as per Part 9 of the OHSA, being prescribed as relief
available and payable by Corporations found to be in contravention of any provision in of the
Act).
APPLICABLE AGREEMENT ARTICLES
The articles of the Collective Agreement which we highlight the Employer being in violation of as
a result of the harassment that the Grievor has been subjected to are Article 5 (No Discrimination;
No Bullying/Harassment), Article 9 (Complaints, Grievances and Arbitration) and Article 23(Safety
and Health). Clause 5.02 of Article 5 states the parties will ensure an environment that isfree from
bullying or harassment as defined under the Occupational Health and Safety Act (OHSA).
Unfortunately this is not the case here as evidenced through the Employer failing to comply with
various parts of the OHSA, including Part 3 (III.0.1) on Violence and Harassment, and Part 6
(Reprisals By Employer Prohibited). Firstly the Employer has not only failed to acknowledgeand
properly investigate the Grievor’s complaints, but has also dismissed the grievance without
following due process. In this case Clause 9.05 in Article 9 being specific to the Employer’s
supervisor not providing feedback directly to the Grievor within five (5) working days given the
numerous occurrences reported to him. Conflicts of interest is also caused as the work area head
is the same as the supervisor that the Grievor has communicated is condoning the harassment
3
she is experiencing (reference to Arbitration Case Outline in the Appendix: “slight hazing”).
Secondly the Employer does not have a workplace harassment policy available to their
employees with measures in place to identify and resolve workplace bullying while incidents of
coercion and intimidation of the Grievor have occurred when attempting to state the employee
is not a fit for the department, due to her inability to accept unwelcome comments. Article 23
has a provision requiring the combined efforts of both the Union and the Employer to work
together in assuring the safety and health of all employees, however during several occasions,
we observed and documented the Employer’s resistance to provide Bill 168 training to their
workforce, including HR and employees at supervisory levels.
APPLICABLE CASE LAW
We are referencing two case precedents which are in support of our position as outlined in the
previous section. These are Hamilton (City) v Amalgamated Transit Union, Local 107, 2013 CanLII
62266 (ON LA, 1st Case Precedent - PDF) and Renfrew County and District Health Unit v Ontario
Public Service Employees Union, Local 487, 2014 CanLII 12448 (ON LA, 2nd Case Precedent - PDF).
The first case centers around the harassment of an employee through the form of unwelcome
comments and conduct, a grievance raised by the employee harassed and subsequently a motion
set in course by the employer to have the grievance mooted (or course changed in terms of
justifying their denial) which was in fact upheld. The Human Rights Code of Ontario is examined
in this case with the definition of harassment and Subsection 10(1) of the Code stating
“harassment” as “engaging in a course of vexatious comment or conduct that is known or ought
reasonably to be known to be unwelcome.” Moreover, the OHSA’s definition of the same term
4
outlined as “engaging in a course of vexatious comment or conduct against a worker in a
workplace that is known or ought reasonably to be known to be unwelcome.” A secondary case
referral in the first case is also made to Toronto Transit Commission v. ATU (2004), L.A.C. (4th)
225, where the Arbitrator (Shime) further described harassment [at para. 249] as: “including
words, gestures and actions which tend to annoy, harm, abuse, torment, pester, persecute,
bother and embarrass another person, as well as subjecting someone to vexatious attacks,
questions, demands or other unpleasantness. A single act which has a harmful effect may also
constitute harassment.” While fairly similar to the first case, the second case analyzes the
psychological injury caused to employees in the workplace, who are not directly the subject of
ridicule and unwelcome comments about their beliefs of orientations and origins, by the
employer and their supervisory employees, but rather targeted indirectly through unwelcome
comments. Hence, the failure on the part of the employer is caused, being unable to ensure a
workplace free from harassment in all its forms, alongside the need for specific training
implemented to prevent such recurrences.
EXPECTED OPPOSING ARGUMENTS
We have come to expect that certain objections may be made to challenge our position and is
anticipated to come in the form of the general clause (9.04, A) to Article 9 (Complaints,
Grievances and Arbitration), the clause (19.01) for vacation entitlement per year under Article 20
(Sick Leave) and a clause (28.01) pertaining to the joint review of training programs for employees
to enrich their job skills in Article 28 (Training). There may be a possibility that due to the
5
numerous occasions at which the Grievor raised complaints to the Employer (direct supervisor),
they are assessed together and ruled out as unsubstantiated, this is a pattern observed in the
case of Humber River Regional Hospital v Ontario Nurses' Association, 2017 CanLII 54356 (ON LA,
PDF). The clause referenced to in Article 20 may very well be termed to demonstrate that the
Grievor was granted paid leave to help remedy her psychological state, with the intent of
transitioning back into the workplace. Whereas the need for Bill 168 training be provided, may
be deflected to the union’s bargaining unit in which a shared responsibility is required to fulfil
the aforementioned clause of Article 28, also viewed as shifting the responsibility from the
Employer to the Union. Whereby, the latter not having proposed the training solution in prior
review meetings with the Employer’s management team.
REBUTTAL FOR OPPOSING ARGUMENTS
Our counter-arguments to the Employer’s expected opposing argument based on Article 20
includes the fact that compensation entitlements rely on legislation (Workers’ Compensation
Act) which has since been repealed and replaced by the Workplace Safety and Insurance Act,
under which the Workplace Insurance and Safety Board (WSIB) operates. The WSIB through
Section 2 of the Act has provisions in place that specifically address mental stress injuries at work,
whereby chronic mental stress caused through workplace harassment is generally considered a
substantial work-related stressor and eligible for compensation paid by the Employer. The
referenced clause in Article 9 does not hold weight when used as an opposing argument since
the grievance is reasonably known to the union only after the Grievor had attempted multiple
6
times to have the Employer directly resolve the harassment concerns in good faith, and
approached her union steward as the final resort. The joint training review clause in Article 28
cannot be used to deflect responsibility back to the union’s representatives as the language used
is contradictory, given the context and is not applicable (“The course or program must be related
to their current position or improvement position or those posted by the organization”). Specific
to the case of Humber River Regional Hospital v Ontario Nurses' Association, 2017 CanLII 54356
(ON LA), the Arbitrator (Goodfellow) recognizes that the hospital had a thorough process in place
to conduct an objective investigation, alongside policies in place for the prevention of workplace
harassment. Therefore, it can easily be argued and a stance taken that this is not the case with
the Employer, as evidenced through their own failure of not following due process.
SUMMARY
In brief, the union is representing, the Grievor who has been subjected to continuous harassment
in the workplace and is suffering from Chronic Mental Stress through unwelcome behaviour by
coworkers, actions that have been condoned by the Employer. We seek to remedy this grievance
by calling out the Employer’s non-compliance with the aforementioned articles in the Collective
Agreement. This is in addition to requiring a workplace harassment policy be instituted, provide
Bill 168 training to all supervisors and employees with immediate effect, financially compensate
the Grievor for general damages of injury to dignity, feelings and self-respect.
7
APPENDIX
Exhibit I:
Collective Agreement
Exhibit II:
Case Law References
Exhibit III:
Citations of Acts & Bills
Exhibit IV:
Arbitration Case Outline
8