Canadian Labour Reporter

October 25, 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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Yousif was still expected to check her email, so she briefly sat at her former desk and checked her email when there weren't many people around, keeping her face mask on. However, the man- ager of court operations at the courthouse saw Yousif at the desk and shouted angrily, "Why are you there? That's not your desk!" Yousif explained why she was there, but the manager told her forcefully and in front of some colleagues, to go back to her desk. Yousif was embarrassed. A few months later, in July, Yousif was helping a male col- league with filing. Occasion- ally, they had to move within six feet of each other. The manager of court operations came up to them and mockingly suggested that they were getting so close to each other, they might get mar- ried. This shocked Yousif, as she was married and was worried that the comments could lead to workplace rumours. She was also offended by the insinuation that she was behaving inappropriately. On Oct. 1, Yousif was alone in the filing room. She was wearing a mask but, since there was no- one else there, she unhooked it from one ear for a short breather. The manager of court services happened to walk by at that mo- ment and asked her where her mask was, although she still had it hanging around her other ear. He told her to put it on and walked away before she had a chance to say anything. Later that day, the manager emailed Yousif — copied to her supervisor — with a form stat- ing that she hadn't been wear- ing a mask. Yousif met with the manager and a female union representative but the manager was nearly an hour late. During the meeting, the manager was rude and dismissive while fre- quently glaring at her. When she attempted to explain things, the manager got angry and stormed out. Both women were upset about the manager's behaviour. Yousif began experiencing anxiety the next day and went home. She was off work for three months. Yousif filed a grievance, claim- ing that the ministry violated the collective agreement — which stated that both the employer and the union were "committed to a workplace free from workplace harassment, including bullying, by other employers, supervi- sors, managers, any other person working or providing services to the employer in the workplace, clients, or the public, in accor- dance with the law." The agree- ment went on to define workplace harassment as "engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome." The board accepted that the incidents happened as Yousif claimed. However, it found that the manager's behaviour did not constitute harassment, which had been established in previ- ous jurisprudence as involv- ing "an element of persistent conduct or a course of activities that involves hostility, impor- tuning, badgering, intimidation or bullying that causes a person distress that is inimical to a safe and positive work environment." This didn't include the exercise of normal management rights or issuing discipline, said the board, adding that not every "employ- ment bruise" causing discontent was harassment. The board recognized that the manager's conduct was "hurtful and disrespectful to employees" and a "recipe for conflict," but found that it didn't rise to the level of workplace harassment. The grievance was dismissed. Reference: OPSEU and Ontario (Ministry of the Attorney General). Nimal Dissanayake — arbitrator. Maria- Kristina Ascenzi for employer. Sept. 14, 2021. 2021 CarswellOnt 13018 was then reassigned to the 9 a.m. shift. However, on June 10, an arbi- trator ruled in the favour of the dismissed employee who had pre- viously filled the porter position. The arbitrator ordered the hospi- tal to reinstate the employee to his old job on the 12 p.m. shift. The union raised the concern that the hospital didn't reinstate the dismissed employee to his old job in accordance with the arbi- trator's intention and the arbitra- tor specified that the employee was entitled to be reinstated to his "previously assigned permanent porter's position," adding that the posting and filling of the position didn't prevent the reinstatement because the hospital should have known that there was a possibility that the employee could be rein- stated. "The vacancy resulting from the termination does not become permanent until the arbitration process had determined whether the termination was just," said the arbitrator. As a result, the hospital rein- stated the dismissed employee and returned Clarke to his previ- ous job as an environmental at- tendant. Clarke then filed a grievance of his own, arguing that there were three permanent porter positions posted by the hospital and he ap- plied for any of them. In addition, the dismissed employee's origi- nal position was the 12 p.m. shift and, after beginning his tenure at that time, Clarke had shifted to the 9 a.m. shift. He noted that the 9 a.m. shift he had worked in was currently being filled in by part- time employees. The hospital countered that it was the start time of the posi- tion that had changed, not just Clarke's. This meant that the original position had shifted from 12 p.m. to 9 a.m. and that was the position that Clarke was filling and to which the dismissed em- ployee had to be reinstated. The second arbitrator noted that the dismissed employee was entitled to be reinstated to his previously assigned porter's po- sition. When the hospital posted the position as a permanent va- cancy, it acted too soon and it didn't bar the dismissed employee from being reinstated to it, the second arbitrator said. The second arbitrator found that Clarke wasn't entitled to any porter's position because his shift time changed, agreeing with the hospital that the time change didn't change Clarke's status as the dismissed employee's replace- ment. The union didn't provide any evidence that the 9 a.m. shift was a newly created position, so the second arbitrator determined that it was the dismissed employ- ee's original position. The second arbitrator also found that it didn't matter if part- time employees were filling in for the 9 a.m. shift at the time. The issue was restricted to whether Clarke had a right to remain in the dismissed employee's porter po- sition, which he did not. The arbitrator ordered that Clarke be returned to his origi- nal position as an environmental attendant in the hospital's house- keeping department. Reference: Humber River Hospital and National Organized Workers Union (2021-NOWU). Yasmeena Mohamed — arbitrator. Adrian Di Lullo for employer. Gary Thayer for employee. Sept. 21, 2021. 2021 CarswellOnt 13100 Humber River Hospital already hired replacement for porter Ontario government worker embarrassed, upset after run-ins < Bumps pg. 1 < Abrasive pg. 1 October 25, 2021 8 Canadian HR Reporter, a Key Media Canada (HR) Ltd. business 2021

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