Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2018 CANADIAN LABOUR REPORTER ARBITRATION AWARDS On Feb. 3, a meeting was set up with Cai and Eastman, as well as Carrie Andersen, associate uni- versity secretary, shortly before the first board meeting of the PAC. Eastman asked Cai if she was married to Pan and after being told yes, Eastman told Cai she should probably resign immedi- ately to save embarrassment during the first PAC meeting. Instead, Cai refused and said she would attend the meeting. During the meeting, all new board members were asked if they could be bias-free during the entire PAC process and Cai responded yes. After the meeting on Feb. 6, Eastman and Corbett met and again Cai was told to resign or she would be forced out. In removing Cai from the com- mittee, the university acknow- ledged it committed prima facie discrimination, but it argued the president-selection process must be completely free of bias. After Cai was removed from the PAC, the University of Vic- toria Faculty Association (UVIC- FA) filed a grievance on April 3, 2017. As well, UVICFA alleged a human rights violation on the basis of marital status. "Considering that the univer- sity's reason for her removal was based on an antiquated stereotype that partners committed to each other through marriage cannot act independently of one another, it is the faculty association's pos- ition that the arbitrary and dis- criminatory removal of Cai is not only contrary to the university's obligations under article 13.1 and article 14.2.1, but also negligent to the university's commitment to ensure gender equity on selection committees contained in appen- dix H (the equity policy)," wrote the association. Arbitrator Arne Peltz disagreed and denied the grievance. However, Peltz directed the university to apologize for its in- itial assertions. "Although I have found that there was a reasonable apprehen- sion of bias justifying removal of the grievor from the PAC, it is also the case that (Cai) was wrongly ac- cused of a conflict of interest. This was a serious error" said Peltz. "I recommend the university issue a letter to the grievor for- mally retracting the allegation and apologizing for the misstate- ment. Since the original letter was signed by the chair of the board of governors, the apology should be issued at the same level of author- ity," said Peltz. The removal of Cai was not motivated "based on an antiquat- ed stereotype that (Cai) was un- able to act independently of her husband. As a result, I hold there was no breach of appendix H in this case," said Peltz. "I find that the avoidance of a reasonable apprehension of bias was a bona fide occupation- al requirement, as argued by the university, and there was no dis- crimination under the Human Rights Code." Reference: University of Victoria and University of Victoria Faculty Association. Arne Peltz — arbitrator. Thomas Roper for the employer. Allan Black for the employee. Oct. 25, 2018. 2018 CarswellBC 2933 Institution ordered to apologize for conflict accusation < Removed pg. 1 Arat was told after the meet- ing that she was being suspended immediately. On Nov. 2, Arat was terminated as a probationary em- ployee "for reasons of general un- suitability as per the terms of the collective bargaining agreement article 10.01c," according to the termination letter. But on Nov. 7, Arat and the union, the Service Employees In- ternational Union/ SEIU-WEST, filed a grievance. "I am not on pro- bation as I have passed 480 hours," wrote Arat in a letter. However, it was determined Arat worked only 467.3 hours, which meant she was a probation- ary employee when she was fired. The basis of the complaint against Arat came from CCA Smita Ranjit who told Marla Fos- ter, social worker, on Oct. 24 that Arat had bullied her. As well, Ranjit said Arat didn't provide any information to her during shift handoffs, she didn't help Ranjit when asked, and Arat threatened to deny any complaints and be backed up by Arat's husband, who also worked at the Meadow facil- ity. Each of the claims were denied by Arat during the arbitration hearing. When Arat was asked to attend the meeting with Hovdestad and Frederick, she was not told why it was called. Sharon Farrell, union representative, also didn't advise Arat due to privacy concerns. Arat was dismissed without ever knowing the reasons why, said the union. Arbitrator Neil Robertson (backed by Andrew Huculak, but dissented by Terry Steininger) upheld the grievance and or- dered the employee to be rein- stated "subject to an extension of the period of probation for 320 hours; not to be placed in a house in which Smita Ranjit is work- ing; and entitled to compensa- tion from the employer for lost income, excluding any potential overtime she might have earned at the Meadows and any income earned beyond full-time hours since her dismissal. If (Arat) is required to repay employment- insurance benefits, that amount should be included in the com- pensation paid by the employer to ensure (Arat) remains whole." The arbitrator found that an employer was usually justified in terminating a probationary em- ployee for unsuitableness, but not in this case. "The board does not find that the employer acted in bad faith or was discriminatory. Nothing was established in evidence to show any improper motive or animus on the part of the decision-makers towards (Arat) for some irrelevant reason. We accept that the man- agers honestly believed in the al- legations," said Robertson. But the employer didn't include further examination after speak- ing to Arat and Ranjit, which was improper, said the arbitrator. "The failure to inform Arat of the nature of the complaint and allow her an opportunity to re- spond before deciding whether to release her constitutes arbitrari- ness," said Robertson. "While the managers were en- titled to believe Ranjit over Arat, elemental fairness required that Arat be given the chance to defend herself. Had Arat been given this opportunity, she may have raised a doubt which caused the employer to do further investigation, such as questioning other co-workers to seek confirmation of Ranjit's al- legations. That opportunity was lost by this omission." Reference: Saskatchewan Health Authority andService Employees International Union/ SEIU-WEST. Neil Robertson — arbitrator. Jana Linner for the employer. Larry Dawson for the employee. Nov. 12, 2018. Facility failed to provide employee explanation for dismissal < 'Arbitrary' pg. 1 Educator's expulsion from committee not motivated because of 'antiquated stereotype': Arbitrator

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