Insensitive Presentation to Employees ≠ Harassment or Discrimination

Concepts like "harassment" and "discrimination" have been the subject of a great deal of legal analysis and debate.  Ultimately, how these terms are defined is a matter of context.  Where parties to a collective agreement sign off on provisions that protect employees from harassment or discrimination on the basis of the grounds in the Human Rights Code or union membership and activity, it is only conduct that violates those protections that a labour arbitrator will punish.  In a recent case dealing with a presentation to employees that was widely described as "offensive", the Ontario Grievance Settlement Board had to decide whether the employer had crossed the line.

In Ontario Public Service Employees Union v. Ontario (Ministry of Transportation), 39 employees joined a grievance alleging that the employer had violated several provisions of the collective agreement and the Human Rights Code when a Regional Manager made a presentation to employees which they found deeply offensive.  The presentation, titled "New Year New Outlook" contained graphic imagery depicting poverty in the developing world. One slide contained an image of an impoverished child, with the caption:  "If you think your salary is low, how about her?"  Other slides seemed to trivialize "first-world problems" and asked employees to set "new expectations". At the time of the presentation, the parties were about to enter collective bargaining.  The union alleged that the images of poverty in the slide show were racist in their depiction of people of colour as deserving of pity.  Moreover, the union took the position that the slide show was condescending, suggested that staff were lazy and overpaid, and was intended to shame and discourage union members in their upcoming negotiations with management. The employer brought a motion to dismiss the grievances on the basis that the allegations, if proven, did not establish a violation of any provision of the collective agreement.  The grievors were not themselves members of any group protected by the Human Rights Code, and could not therefore rely on the non-discrimination provision of the agreement.  The employer also argued that the union had not provided any particulars of how the grievors' rights to participate in the union's activities had been impacted. 

The Grievance Settlement Board found that the grievances did not make out a prima facie case.  Assuming that the factual allegations were all true, there was nothing in the grievances that would establish a violation of the collective agreement or the statutes in questions.  Given that there were no particulars asserting that any of the grievors were identified with a protected ground, the union could not prove that the presentation amounted to harassment, discrimination or created a "poisoned work environment" for anyone identified with a particular racial group.  As the Board concluded at para. 37:

In the present case, there is no assertion that any of the grievors were members of a protected group or had a protected characteristic. Nor are any facts asserted that the workplace became poisoned for any of them because of a protected characteristic. The grievors may well have been offended by the presentation. However, there are no facts asserted that any of them had a protected characteristic let alone exposure to a poisoned work environment because of such a characteristic. Since the collective agreement and Code provisions relied upon by the union prohibit discrimination on the basis of specified grounds, there can be no contravention based on the asserted facts.

The Board further found that the union had not alleged any facts that would tend to establish that the employer had engaged in anti-union activity by making the presentation during a bargaining year.  Without pointing to some objective evidence that the grievors had suffered some disadvantage because of their union membership or activity, the union could not establish a violation of the collective agreement.  Moreover, the union had not provided any facts that would raise an inference of anti-union animus by the employer. 
In closing, the Board felt compelled to address the union's argument that dismissing the grievances for lack of a prima facie case would send the message that the presentation was "fine".  The Board disagreed, pointing to its role as an adjudicator under a collective agreement.  At para. 46, the Board stated:

The dismissal of these grievances on the basis of absence of jurisdiction is certainly not, and ought not be seen as, a finding by the Board that the employer conduct was "fine" or that the Board endorses such conduct. The fact that 39 individuals found the presentation to be offensive to such an extent to cause them to grieve, speaks for itself. The employer, through communications of regret/apology appears to have realized that the presentation was negatively received by a large number of employees. The Board’s determination is that as a matter of law, the grievors have not asserted facts [that], if accepted as true, are capable of establishing that any of them had their rights under any of the collective agreement and statutory provisions relied upon, denied or abridged. The Board so finds. As a result the employer’s motion is upheld and all of the grievances are hereby dismissed.

The case demonstrates the importance of carefully reviewing the language of the collective agreement when assessing the strength of a grievance or argument. Depending on the language of the agreement, "offensive" may not amount to "harassment" or "discrimination".  While the result would be different under an agreement that contains broader definitions of employee rights, the case stands for the proposition that an arbitrator is limited to the four corners of the collective agreement and cannot assert free-standing jurisdiction to judge every employer action, no matter how "offensive, distasteful and inappropriate" those actions may be.  The collective agreement still dictates the arbitrator's jurisdiction.

 Do you have concerns about workplace harassment or other offensive behaviour?  Need advice on an upcoming grievance arbitration?  Contact Lance Ceaser for cost-effective assistance with all of your labour and employment law issues.



 


 

Supreme Court of Canada "Constitutionalizes" the Right to Strike

In a decision that will have deep reverberations throughout the broader public sector across Canada, the Supreme Court has ruled that section 2(d) of the Canadian Charter of Rights and Freedoms protects the right to strike for all workers in Canada, including those public sector employees who are currently covered by labour legislation that limits or eliminates the right to strike.

In Saskatchewan Federation of Labour v. Saskatchewan, the Supreme Court held (in a 5-2 decision) that the right to strike is a merely an extension of the right to engage in meaningful collective negotiation of working conditions, which was previously found to be protected as part of Canadians' "freedom of association", guaranteed by section 2(d) of the Charter.  The majority of the Court found that removing the right to strike curtails this freedom in a manner that is not justified under section 1 of the Charter.  In particular, the Court found that rights under section 2(d) were not "minimally impaired" as the legislation introduced by the Government of Saskatchewan in 2007 gave the employer (the Province) the unilateral discretion to identify the number and identity of workers who would be providing "essential" public services, required those workers to perform all of their regular duties (not just provide services that were deemed to be essential), and offered no alternative mechanism for the resolution of collective bargaining impasses.  In short, the legislation eliminated the right of certain workers to strike (without any negotiation on which services or workers were "essential") and offered no meaningful scheme (such as binding arbitration) to resolve disputes that might otherwise lead to the withdrawal of employees' services. The majority suspended the application of the decision for one year to allow the Government to make necessary modifications to the legislation to comply with the Charter.

The minority (Rothstein and Wagner JJ) held that the majority's decision overstepped the bounds of judicial intervention, effectively ensconcing a right that had previously been found to not exist (in a decision of the Court from 1987).  The minority Justices were of the opinion that the majority's approach removed the flexibility that Government required to balance the interests of employers, employees and the public. In the minority's opinion, recognizing a constitutional right to strike would upset that balance, in favour of employees.

While it remains to be seen how this decision will be interpreted and applied outside Saskatchewan, where legislative schemes differ, it is likely to change the tenor of public sector collective bargaining everywhere.  Public sector employers will likely have to, at least, engage in meaningful negotiation with public sector trade unions regarding which and how many employees are required to perform essential services during a work stoppage.  Those who are required to work during a strike will only have to perform those functions necessary to continue the essential service in question. Where regimes provide for a complete ban on strikes, legislation will have to be amended to provide for some other dispute resolution mechanism as an alternative. 

One outcome is clear, however.  This decision represents a significant victory for the labour movement in Canada, as it has redefined and broadened the meaning of "freedom of association" beyond what it has been for the last 30 years.

Do you have questions about labour relations or employees' right to strike?  Contact Lance Ceaser for expert guidance.

Arbitrators Have Exclusive Jurisdiction Over ALL Matters Covered by the Collective Agreement

A recent decision of the Ontario Court of Appeal highlights the importance of the decision in Weber v. Ontario Hydro almost 20 years later.  In Weber, the Supreme Court of Canada had to determine whether legislatures had granted exclusive jurisdiction to labour arbitrators to deal with all issues of interpretation, application or alleged violation of a collective agreement, or if they shared concurrent jurisdiction with the courts.  Under the former model, unionized employers and employees would have virtually no recourse to the courts if their disputes could be said to arise under the collective agreement.  The Supreme Court ultimately rejected concurrent jurisdiction, and stated very clearly that all issues arising in the unionized workplace that fell within the four corners of the collective agreement had to go to arbitration.

The employee in George v. Anishinabek (Police Service) was a member of the Anishinabek Police Service (the "APS") who was facing discipline.  Under a tri-partite agreement among the federal and provincial governments and several First Nations, the APS was retained to provide policing services within certain APS territories. Oversight of APS policing was granted to the Police Governing Authority ("PGA"), which was also responsible for decision-making under APS' Code of Conduct for its employees.  The PGA was also the "employer" of all APS staff, and was bound to a collective agreement with the Public Service Alliance of Canada, which provided a grievance procedure for all issues falling under the collective agreement.  Under the APS Code, decisions on discipline were to be made within 6 months of an incident, but with some discretion for the PGA to extend those timelines.  Mr. George was advised of a disciplinary hearing more than 12 months after an incident on the job, but was not given notice that APS had sought an extension of the time to commence a proceeding under the Code.  As a result, he brought an application for judicial review in the Divisional Court to quash the notice of disciplinary hearing (on the basis of a lack of procedural fairness), and was successful.  The APS appealed that decision.

At the Divisional Court, the APS did not challenge the court's jurisdiction to judicially review the decision of PGA, but this was the central issue in its appeal to the Ontario Court of Appeal.  While appellate courts will usually not allow parties to argue points that were not argued in the courts below, they did permit APS to pursue this argument as it might be determinative of the matter, could be argued on the existing record without further evidence, and would not be overly prejudicial to the respondent.  On the question of whether the Divisional Court had jurisdiction to engage in judicial review, the Court of Appeal relied on Weber to find that the answer was "no".  Under Weber, a court must consider the nature of the dispute, and whether that dispute falls within the ambit of the collective agreement in question. In applying the test to the circumstances of the case, Justice Doherty (writing for a unanimous court) found that the issue revolved around discipline.  While discipline was a matter covered by the Code, the Code was simply the mechanism by which the employer exercised its management rights under the collective agreement.  Accordingly, the dispute in question was one that fell within a labour arbitrator's exclusive jurisdiction, and the issue of procedural fairness should not have been addressed by the Divisional Court.

The Court of Appeal's decision serves as a good reminder of the extent to which a collective bargaining relationship changes the dynamics of a workplace.  Not only are typical employee relations issues barred from the courts, but any dispute or matter of interpretation, including those that arise under employment-related statutes, should be brought before an arbitrator for determination.  It is therefore important for employers to ensure that they are mindful of Weber when confronted with a claim (or the threat of a claim) in the courts, and to argue that the issue should be resolved in grievance arbitration.

Do you have questions about labour relations or other employment-related litigation?  Contact Lance Ceaser for assistance.
 

Failure to Follow Procedure for Asbestos Removal and Attempt to Cover Up Mistake Constitute Just Cause

Everyone makes mistakes.  It's a truism, but one that labour arbitrators give weight to when considering whether employee conduct amounts to just cause for discipline or discharge.  However, when it comes to safety in an already dangerous environment, the margin for error is much narrower.
And an arbitrator will be reluctant to reinstate an employee who, given an opportunity to come clean, persists in a version of events meant to minimize or deny any wrongdoing.

In Ontario Power Generation v. Power Workers Union (Grievance OPG-NT-1855), the grievor was a Front-Line Manager Assistant ("FLMa") on a roving outage crew.  The grievor and his crew reported to a Front-Line Manager and were responsible for performing working on OPG's facilities during scheduled outages. On one occasion, the crew was assigned to remove and replace gaskets on the Unit 1 generator end doors at the Pickering nuclear facility.  The grievor was aware that the gasket in question might contain asbestos, but upon visual inspection he concluded that it was a different type of gasket ("blue guard") which did not contain any asbestos.  The grievor directed his crew to remove the gaskets with hand tools, but when that proved difficult, he gave them the go-ahead to use power tools to grind the gaskets off the steel doors.  During this grinding procedure, an employee on another crew complained of the dust and his concern that the gaskets might contain asbestos.  Although the same employee complained three times, and the issue was brought to the grievor's attention, no formal complaint or documentation was created, the grievor did not check the OPG systems to confirm the type of gasket involved, and his crew was simply told to sweep up the dust created by the grinding.  Of course, throughout, the grievor and his crew did not utilize any of the required asbestos-containment techniques that would be required if work was being done on friable asbestos.

The employee who had complained, renewed his objections the next day, and his concerns ultimately reached OPG management.  The matter was investigated, and the grievor was called in to explain what had occurred.  The grievor confirmed that he had visually identified the gasket as not containing asbestos, and claimed that he had seen a "blue guard 3000" label on the gasket that was being removed - something which he later claimed to have been 'confusion', once it was clear that the gasket did, in fact, contain asbestos.  The grievor and his boss, the FLM, were both terminated, and another FLMa was given a 10-day suspension for their negligent handling of the work and the safety complaint.

Arbitrator Chris Albertyn recognized that the employer was not without some blame.  OPG was supposed to have created an inventory of all items that contained asbestos in the workplace, and was supposed to be in the process of replacing all asbestos-containing materials with non-asbestos substitutes, but had not met these commitments.  That being said, the grievor was a well-trained, licensed tradesperson.  He was aware of the risks presented by asbestos, having just completed a refresher on the issue.  The evidence established that the grievor never made an effort to confirm his visual identification of the gasket, even after a safety concern had been raised by a worker.  Instead, he took steps to avoid the necessity of an investigation, thereby putting his decision-making beyond scrutiny.  His alleged confusion about seeing a "blue guard" label was simply not convincing.  In the result, the arbitrator concluded:

... while I can see the grievor faced difficulty determining the true composition of the gasket in the early stages and that his blameworthiness then could be tempered with the institutional failures of the company and the other mitigating circumstances, that changed later. The manner in which the grievor responded towards the end of the day, and the next day, to the worker’s safety complaint and to the risk of asbestos contamination showed him to act in a manner best served to avoid difficulty for himself. He was willing to put at risk the health and safety interests of the employees for whom he was responsible, as for those coming on shift after him.

Although he had 7 1/2 years' service and no discipline on his record, Arbitrator Albertyn stated:

When an employee disregards the appropriate safety checks, when the risk of harm is substantial, as I have found to be the case here, the consequence to the employee should be severe, to reinforce the importance of safety and adhering to the safety rules and procedures.

In the result, discharge was the upheld as the grievor had not only been negligent, but had tried to cover up the possibility that he had misidentified the gasket, thereby exposing his co-workers to significant risk of harm.

While mistakes may be forgivable, making the conscious choice to ignore such an error, thereby exposing oneself and others to health and safety hazards, is not so easily overlooked.  Where an employee has responsibility for ensuring that work is performed safely, has the requisite training and resources, and still makes poor (i.e., unsafe) choices, the employment consequences need to be relatively harsh, if not dire.  Where mistakes are compounded by a lack of candour or an effort to cover up the error, the necessary trust in the employment relationship may be irrevocably damaged.  In those situations, employers need to consider the message that it is sending to the rest of the workforce about the importance of health and safety.

Do you have a question about health & safety in the workplace?  Trying to figure out how to respond to safety violations?  Feel free to contact Lance Ceaser for assistance.
 

 

When Arbitrators "Get It Wrong": Judicial Review as a Remedy

Section 48 of the Labour Relations Act provides that all collective agreements in Ontario must provide for "final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement".  As a result, the courts will generally show considerable deference to the decisions of labour arbitrators.  But what about those instances where the decision of an arbitrator seems to fly in the face of reason?  A couple of recent decisions from the courts indicate that deference only goes so far.

The decision of the Alberta Court of Appeal in Telus Communications Inc. v Telecommunications Workers Union offers an example of just such a case.  The grievor was a service technician for Telus.  He had asked to use vacation to participate in a slo-pitch tournament.  His request was denied, but the employee called in sick for the day, stating that he could not come in "due to unforeseen circumstances".  His manager attended the ball park, and witnessed the grievor pitching in a game.  When confronted, the grievor said that he awoke that day with severe diarrhea, but that he was able to attend the tournament, just to watch.  Upon further questioning, he admitted that he was playing (only pitching, not batting or running the bases), and stated that he felt he could manage his condition at the ball park, but could not have attended customers' homes.  The employer terminated the grievor, and the union filed a grievance.  At arbitration, the Arbitrator acknowledged that the grievor had twice lied to the company during the investigation meeting, and that he had planned to play in the ball tournament despite not being given the day off.  However, the Arbitrator ultimately decided that the company had "over-reacted" and substituted a one-month suspension for the discharge.

On judicial review, the Chambers Judge found that the Arbitrator's decision was subject to a standard of "reasonableness", but that the decision could not stand.  The Judge ruled that the Arbitrator had failed to properly weigh the evidence and that his conclusion that an employee could be too sick to work, but could still pitch in a baseball game, "defies logic and common sense".  Moreover, the Arbitrator's decision that discipline was only warranted where the employer could establish that the employee's absence actually affected customer service was unreasonable.  Rather than sending the matter back to the Arbitrator or a different arbitrator, the Chambers Judge ruled that the only reasonable conclusion available was that the grievor lied about being sick, and that his termination was justified.  In the result, the Arbitrator's award was quashed, and the discharge was upheld.

The Alberta Court of Appeal found that the Judge was "correct" that "the arbitrator's decision was not within the range of possible outcomes defensible in respect of the facts and law".  The Court also agreed that where sending the matter back for re-hearing "would serve no useful purpose", it is open to a reviewing court to quash the decision and uphold the termination.  Accordingly, the appeal was dismissed.

The result in Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011 was similar.  The grievor was a mail room clerk who engaged in a pattern of sexual harassment and sexual assault of a contract employee who cleaned the offices where the grievor worked.  The grievor had grabbed the complainants buttocks on several occasions, and had tried to kiss the complainant in an elevator, over her objections.  The employer investigated the complaint and found that the grievor had, in fact, engaged in sexual harassment and assault of the cleaner.  He admitted the behaviour, but claimed that the complainant had consented.  The employer discharged the grievor for cause.  At arbitration, Arbitrator Weatherill found as a fact that the grievor engaged in 'sexual banter' with the cleaners and that he occasionally grabbed one cleaner's buttocks, and noted that the grievor had previously been asked not to do so.  Acknowledging that the grievor's behaviour was "improper", the Arbitrator nonetheless pointed out that the grievor had ceased harassing one cleaner when she showed him her fist, and that the primary complainant had indicated in her testimony that she did not want the grievor discharged.  He, therefore, concluded that the grievor's actions were not at the severe end of the spectrum of sexual harassment, and substituted a "lengthy period of suspension" for the discharge.

The employer applied for judicial review, and the Divisional Court had to consider whether the Arbitrator's decision was "reasonable".  The Court recognized that not every case of sexual harassment or assault may demand discharge, but found that the grievor had harassed at least two of the cleaners and that he displayed no remorse or insight into his behaviour.  The grievor had offered a form of "apology" to the complainant that demonstrated no awareness of the impropriety of his actions and no commitment to not engage in similar behaviour in the future.  The Court found that the Arbitrator had placed significant weight on two irrelevant considerations (i.e., the fact that the grievor desisted after one cleaner showed him her fist, and that the complainant did not want him to be discharged), and reached a conclusion that was not "defensible in light of the facts and the law". In the result, the Court set aside the award as to penalty and upheld the termination of the grievor.

While it is not everyday that the courts will intervene in the decisions of arbitrators (or other statutory decision-makers), these decisions demonstrate that where those decisions threaten the function of the administrative tribunal system, the courts will step in.  Employers are well-advised to carefully review arbitral decisions, particularly in cases of serious misconduct where termination is not upheld.  If the punishment does not seem to fit the crime, the courts may be called upon to remedy the outcome, and without the necessity of a re-hearing.

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Has your organization received an arbitral award that seems to defy common sense?  Feel free to contact Lance Ceaser to obtain advice and guidance.

 

A Few Quick Bites

Is the “Character of Employment” still relevant to reasonable notice?

Just how important is the “character of [an employee’s] employment” when assessing reasonable notice?  Traditionally, higher reasonable notice periods had been reserved for terminated employees in more senior roles within an organization, with upper management and executives achieving the largest periods (maxing out around 24 months’ pay).  However, in Di Tomaso v. Crown Metal Packaging Canada LP, the Ontario Court of Appeal made the following observation back in 2011:

[The employer] would emphasize the importance of the character of the appellant’s employment to minimize the reasonable notice to which he is entitled. I do not agree with that approach. Indeed, there is recent jurisprudence suggesting that, if anything, it is today a factor of declining relative importance: … [citations omitted].

This is particularly so if an employer attempts to use character of employment to say that low level unskilled employees deserve less notice because they have an easier time finding alternative employment. The empirical validity of that proposition cannot simply be taken for granted, particularly in today’s world.

Di Tomaso was a very long-service (33 years), older worker (62 years old), and was deserving of a significant period of notice despite having held a semi-skilled position throughout his employment with Crown.  In the result, the Court of Appeal upheld 22 months’ notice.

If “character of employment” is still alive, it’s on life support.  In the recent decision in Kotecha v. Affinia Canada ULC, the terminated employee had worked for Affinia for over 20 years and was 70 years old at the time of trial in 2013.  At trial he was awarded 22 months’ notice (on top of 11 weeks’ working notice he’d been given by the employer).  The Court of Appeal recognized that the plaintiff employee had shorter service than Mr. Di Tomasso, and reduced his award of damages to 18 months’ pay, less the 11 weeks’ working notice that had been provided. While this may appear to be a loss for the employee, it still represents a significantly better outcome than one would have expected before the decision in Di Tomaso.  The moral of the story:  age and length of service continue to be the primary drivers in assessing reasonable notice, and the nature of the role is less important to the analysis.

Municipality May be Certified on Strength of Two Membership Cards

The recent decision of the Ontario Labour Relations Board in United Brotherhood of Carpenters and Joiners of America v Regional Municipality of Waterloo highlights the dangers for employers who operate in the construction industry and who have work performed by small numbers of workers outside normal working hours.  The Municipality had two workers building a shed on the Region’s property on a Saturday.  Both employees had signed cards with the Carpenters’ union.  The UBCJA filed its application on that day, and the Board determined that it had the requisite support among a bargaining unit of carpenters working for the Municipality to be certified.  {Ultimately, the Board still needs to determine whether the Union will be successful in displacing the Canadian Union of Public Employees, which currently represents these workers.]

In the construction industry in Ontario, trade unions need only submit signed membership cards representing 55% of more of the employees who were working on the “Application Filing Date” in order to be certified as the bargaining agent for all of the employees in the applicable bargaining unit.  It matters not whether a majority of all the employees in that bargaining unit support unionization – there need only be two (2) or more employees who have signed cards at work on the day the Application for Certification is filed.

The Waterloo decision also raises the issue of when an employer is subject to the “construction industry” provisions of the Labour Relations Act.  The Municipality argued that it was a “non-construction employer”, but the Board heard evidence that the Municipality had its employees perform repairs or assist with construction work on premises that it rented to third-parties.  For employers who own premises, but rent portions to other organizations, it’s important to understand that any construction work performed for tenants and for which the “landlord” will receive compensation could put that employer in the “construction industry”, and make the organization subject to the card-based certification process.

 
Getting Tough on Workplace Harassment

In two recent arbitration decisions, labour arbitrators have considered the scope of their remedial authority when addressing harassing behaviour.  In Unimin Canada Ltd v. United Steelworkers, Local 5383, the grievor had been given a 15-day suspension for repeatedly harassing and bullying a female co-worker in front of her male counterparts.  Following the grievance procedure, the suspension was reduced to 10 days on the condition that the grievor provide a written apology to the complainants and the company.  The grievor’s letter of “apology” showed no remorse, and shortly after his return from suspension he engaged in a number of retaliatory actions.  The company discharged him.

On the arbitration of the discharge grievance, the Union sought to exclude any evidence related to the earlier suspension or the apology, relying on a version of “double-jeopardy” (i.e., those issues had already been considered in the settlement of the earlier grievance, and the employer had accepted the apology he provided, such as it was, without reinstating the 15-day suspension).  The Arbitrator found that the evidence of the grievor’s earlier behaviour, and the content of the apology were relevant to the discharge grievance, and that there were compelling reasons to consider this evidence.  The evidence reflected on the grievor’s credibility in continuing to deny all wrong-doing, there was a similarity of facts between the earlier matter and the reasons for discharge, and it reflected on his complete lack of remorse.   In the result, Arbitrator Randall concluded that the grievor had attempted to retaliate and intimidate the complainants, and that there were no persuasive reasons to alter the penalty imposed by the employer.  The grievance was dismissed.

In William Osler Health System v Ontario Nurses’ Association, the Union brought a grievance on behalf of a nurse who had been sexually harassed by a doctor.  While the Hospital agreed that the harassment had occurred, it felt that its removal of the doctor’s privileges at the hospital was adequate to address the issue.  The Union disagreed, and pressed the labour arbitrator to prohibit the doctor from returning to work at the hospital.  The Hospital took the position that a labour arbitrator does not have the jurisdiction to issue such a remedy.

Arbitrator Albertyn had to consider whether the doctor’s return to the workplace would “pose any reasonable risk of harm to the grievor”, and assess whether his authority under statute extended to effectively stripping the doctor’s medical privileges indefinitely.  The Hospital argued that under the Public Hospitals Act and regulations, there was a process for removing or declining to reappoint a doctor’s privileges, but that the procedure was subject to appeal to the Health Professionals Appeal and Review Board and was to be carried out pursuant to the rules of natural justice.  At the same time, freedom from harassment and the obligation to provide a safe, healthy workplace were subject to the Human Rights Code and the Occupational Health and Safety Act, both of which an arbitrator has jurisdiction to interpret and apply.

The arbitrator concluded that the process under the Public Hospitals Act was outside his jurisdiction, and that ultimately he could not decide whether the doctor’s privileges should be restored.  However, assuming that the HPARB determined that he would regain those privileges, the arbitrator’s jurisdiction would be to answer the “labour relations and workplace safety question arising directly from the collective agreement”:  how closely should the doctor be permitted to work with the grievor and under what, if any, conditions?  Arbitrator Albertyn indicated that he would have to consider what hours and locations of the Hospital the doctor could work at, and whether he could be in the workplace at all while the grievor was present, in order to provide the grievor with a safe, harassment-free work environment. 

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Do you have questions about employment and labour law issues?  Please don’t hesitate to contact Lance Ceaser for assistance.