Canadian Labour Reporter

March 8, 2021

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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on Sept. 5. Belyea was one of those employees and VLRA provided her with working notice and sev- erance pay. However, VLRA failed to in- form Belyea that, under the col- lective agreement, she had the right to bump an employee with less seniority. It eventually did so on Sept. 11, and Belyea took sev- eral days to consider her options. On Sept. 17, she told VLRA that she would like to bump into the position of specialist service co- ordinator. The employee in that position, who had less seniority than Belyea, was informed that she was being bumped into a lay- off two days later. On Sept. 20 and 21, the bumped employee and two of her friends — one who was a VLRA employee and another who worked for the Canadian Nation- al Institute for the Blind (CNIB), with whom VLRA worked closely — filed sexual harassment com- plaints against Belyea. VLRA suspended Belyea with pay before she could start in her new position and investigated. It didn't give her details, only saying it had "received multiple allega- tions from staff members outlin- ing behaviour… in violation of our Workplace Anti-Violence, Harassment, and Sexual Harass- ment policy." Belyea was shocked by the al- legations as she had no idea there were any concerns. When VLRA interviewed the complainants, they said Belyea had made inap- propriate comments to a male colleague and a male CNIB intern related to their appearance in the summer of 2018, had hugged them, and had made sexually- themed jokes. Neither of the al- leged victims said they had been sexually harassed — they were on friendly terms with Belyea and were willing participants in any hugging and joking. Belyea de- nied sexually harassing anyone. However, VLRA determined that Belyea had sexually harassed the male colleague and the intern. It terminated her employment on Oct. 16 for breaching the sex- ual harassment policy. The union grieved the termination, claiming that VLRA violated the collective agreement's provisions prohib- iting discipline or termination without just cause and requiring progressive discipline. The arbitrator noted that "there is a wide range of con- duct that may be considered sexual harassment" and the con- duct must be "either sexual or gender-based in nature and un- welcome" to constitute sexual harassment." In this case, nei- ther of the alleged victims made complaints nor did they believe they had been sexually harassed, said the arbitrator. The arbitrator found that the credibility of the complainants was lacking. They were friends with each other and one of them had been bumped from her posi- tion by Belyea, so there was mo- tivation to remove Belyea from her employment. In addition, the timing was suspicious and sug- gested coordination — the com- plaints were similar, were made within two days of the bumped employee learning of her layoff and were made much later than when the alleged harassment happened. The arbitrator found that Be- lyea hugged and joked with other employees "in consensual and platonic terms" but none of it was unwelcome. Therefore, it didn't amount to sexual harassment, said the arbitrator. The arbitrator determined that VLRA did not have just cause to dismiss Belyea and or- dered the organization to rein- state her with compensation for lost wages. VLRA also had to pay $20,000 in aggravated damages for an unfair investigation that caused "suffering greater than the normal distress one would experience during termination of employment." Reference: Vision Loss Rehabilitation Alberta and UFCW, Local 401. Kathryn Oviatt — arbitrator. Thomas Duke for employer. Natalia Makuch for employee. Jan. 25, 2021. 2021 CarswellAlta 183 fun." Afterwards, the housekeeper tried to avoid the worker when she encountered her. On April 17, the same house- keeper was speaking to a resident and saw the worker approach her and gesture as if she was going to do the same thing as before. The housekeeper retreated into an adjacent room and said not to touch her again. The worker an- swered again that it was all in fun. Another housekeeping employee witnessed the interaction. The second incident was caught on surveillance video, which depicted the worker ap- proaching the housekeeper and the latter retreating into the next room. The following week, on April 23, the worker came up to a sec- ond housekeeper as the latter filled up her cart. The worker told the second housekeeper that she liked her shirt, after which she got close and touched the house- keeper's crotch. The housekeeper got upset, pulled back and said, "Whoa." The worker then laughed and went down the hall. This inci- dent was also caught on video. AHS investigated complaints about the incidents — both housekeepers said they felt vio- lated and didn't want to work with the worker again. The worker said she didn't recall touching the first housekeeper in the first inci- dent. In the second incident, she said she just touched her elbow and was laughing because they were "just joking around." When showed the video of the second in- cident, she said it was too dark and she didn't recall anything. As for the third incident, the worker said she was admiring the second housekeeper's shirt and touched her accidentally with her knuckle, but she couldn't say where she touched her. She said she ran away because she was sur- prised but came back, offered her a high-five and touched her shoul- der in case she was upset. The video depicted the worker skip- ping away laughing but the worker couldn't say what the joke was. Ultimately, the worker couldn't explain why such allegations would be made about her if they weren't true. AHS terminated the worker's employment on May 22, 2019. The union argued there wasn't just cause. The arbitration board found that the accounts of the complain- ants and witnesses were consis- tent with each other and the video footage of the second and third incidents. The worker's explana- tion for all of them wasn't credible and she showed no sensitivity to the housekeepers during the in- cidents or afterwards, said the board. The board also found that AHS had a clear policy in place that the worker understood. As a result of this and her conduct, the worker deserved discipline. Although the collective agree- ment had a progressive discipline provision, it allowed for the skip- ping of steps if the misconduct was severe. The board found that the na- ture of the worker's responsibili- ties, her lack of sensitivity and re- morse and the seriousness of her actions warranted termination, despite her seven years of good service. Reference: Alberta Health Services and AUPE . Andrew Sims, Ray Domeij, Randee Manske — arbitrators. Marisha Nosdryn-Plotnicki for employer. Liane Lawford for employee. Jan. 11, 2021. 2021 CarswellAlta 181 Aide's poor record reason to skip progressive discipline Complaint filed by employee bumped from position

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