Canadian Labour Reporter

employer harassed and discrimi- nated against her. The matter went to arbitration and the case proceeded with both sides presenting arguments and witnesses presenting evidence. The worker attended all of the arbitra- tion hearings and fully participated. However, in November 2019 the arbitrator was unable to continue. Another arbitrator was appointed and the process was restarted. Several hearing dates were pro- posed over late 2019 and early 2020 and both the employer and union counsel indicated availability for them. They were unable to sched- ule any hearings, however, because the worker didn't respond to re- quests about her availability. On March 2, 2020, the employer asked that the arbitrator direct the union and the worker to confirm their availability for hearing dates and proposed that if they didn't, both grievances should be dis- missed. It argued that it couldn't wait "indefinitely" for hearings to be scheduled, as the longer things took, the less credible witnesses would be due to memories deterio- rating over time. In addition, a lon- ger delay created more liability on the employer's part for a potential award of back wages if the decision went against it. As it turned out, the worker had also filed a claim of harassment with the Ontario Human Rights Tribunal that had been deferred pending the outcome of the arbitra- tion case. When it was determined that the arbitration case would have to be reheard, the worker was dis- appointed because it would further delay her human rights claim. The union suggested that the worker should be given "a reason- able period of time" to get advice from her legal representative in the human rights proceeding so she could decide if she wanted to pur- sue the grievances or focus on the tribunal case. The arbitrator agreed on March 27 to grant the worker 30 days to make her decision and stip- ulated that, if she elected to contin- ue with the arbitration matter, she must co-operate with the efforts to schedule hearings. Four weeks later, the union indi- cated that after telling the worker about the order, she said she was "moving forward with the [Human Rights Tribunal]" and didn't show any willingness to participate in the rehearing. However, the union said it would not withdraw the griev- ances. The employer said that it would be unfair to delay the proceedings any longer due its concerns of li- ability and witness credibility over time. It reiterated its request to dis- miss the grievances on the basis of the worker's refusal to participate. The arbitrator found that the employer had "the right to have the proceeding against it determined as expeditiously as possible" and "fairness dictates that some final- ity be brought to this matter." With the worker's failure to respond to efforts to schedule rehearing dates and her statement to the union that she was moving forward with her human rights application, it had be- come clear that she wasn't going to be available for or co-operate with the proceedings, making it difficult to go ahead with it, said the arbitra- tor in dismissing the grievances. "Despite being given ample opportunity to participate in the rehearing of her grievances, the [worker] had clearly chosen not to do so," said the arbitrator. "Allow- ing this matter to continue in the face of the [worker's] ongoing re- fusal to participate in the hearing process would result in an abuse of process." Reference: OPSEU and Ontario (Ministry of the Solicitor General). Sheri Price — arbitrator. Peter Dailleboust for employer. Ed Holmes for employee. Oct. 19, 2020. 2020 CarswellOnt 15636 Things got heated and after some angry comments from both, the ISC coordinator left and filed a complaint. SaskPoly launched an investigation. At an investigation meeting two days later, the instructor ad- mitted to making the comments and told the investigators that "they don't work and get hand- outs" and "we've given enough — residential schools and land." At a second meeting on the same day, the instructor was asked if there was anything else he wanted to add. The instructor said no and asked if he could go. SaskPoly determined that the instructor violated its code of conduct, which required employ- ees to be accountable for their be- haviour and "to act with diligence, respect, integrity, transparency and accountability." The institu- tion terminated the instructor's employment on Dec. 3, referring in the termination letter to the code of conduct and his "lack of remorse." The union grieved the dis- missal, arguing that the instruc- tor wasn't given an opportunity to improve in accordance with progressive discipline enshrined in the collective agreement. In addition, SaskPoly didn't list the grounds for termination in the termination letter. The union noted that the instructor had been unable to attend recent In- digenous awareness training due to scheduling of his classes. The instructor apologized af- ter his termination, saying that he had started reading about Indig- enous people and the Truth and Reconciliation Commission. He said that he realized that he had been "wrong on a lot of occasions on what I said." He also emailed a formal apology to the ISC coordi- nator. The arbitrator noted that Sask- Poly didn't specify which prin- ciples in the code of conduct that the instructor had breached. In addition to the collective agree- ment's disciplinary requirements, SaskPoly's code of conduct and harassment policy both set out the right of procedural fairness and due process, which included steps that SaskPoly didn't follow, such as exploring an informal res- olution process. The arbitrator agreed that the instructor made inappropri- ate racist comments directed toward Indigenous people that were deserving of discipline. However, his 34 years of service with a clean disciplinary record and the fact he had not yet taken the Indigenous awareness train- ing — there was a potential for rehabilitation through educa- tion — were mitigating factors. In addition, the initial email was "a rash, impulsive, spur-of- the-moment act," and the ISC coordinator provoked the in- structor's behaviour when he confronted him, said the arbi- trator. The arbitrator also found that the instructor acknowledged his conduct throughout the inves- tigation and eventually apolo- gized. Had SaskPoly followed the proper process, there would have been more opportunities for the instructor to apologize, said the arbitrator. The arbitrator determined that dismissal was too harsh and ordered SaskPoly to reinstate the instructor with a six-month unpaid suspension and Indig- enous awareness training. "In the end, I am satisfied that [the instructor] knows that his comments were ill-informed and wrong," said the arbitrator. "He has taken steps to become informed and to work on his at- titudes and beliefs." Reference: Saskatchewan Polytechnic Faculty Assn. and Saskatchewan Polytechnic. Anne Wallace — arbitrator. Jon Danyliw, Amelia Lowe-Muller for employer. Gordon Hamilton for employee. Sept. 9, 2020. 2020 CarswellSask 511 Service time, apology showed rehab potential: Arbitrator Failure to participate in hearing made process untenable

• Cover