Canadian Labour Reporter

November 4, 2019

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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8 Canadian HR Reporter, a HAB Press business 2019 November 4, 2019 ARBITRATION AWARDS representative, he gave "yes" or "no" responses to each alleged in- cident — yes to the nail-painting and comment about a student smelling nice, no to all the others. The board removed him from the classroom but assigned him work to do from home while it investi- gated further. The school board contacted the Children's Aid Society (CAS) for consultation and the police launched an investigation. The teacher's two "yes" answers were potentially alarming for the school board, but it needed more information on the context to de- termine if there was misconduct. It sent the teacher a letter request- ing more information on the alle- gations. However, the union advised that the teacher wouldn't respond since it viewed the involvement of the CAS as disciplinary. The teacher stated that he was unable to comment "given the on- going investigation." Because of the ongoing inves- tigations, along with the teacher's failure to comply with its request for more information, the school board decided to immediately sus- pend the teacher without pay. A few days later, the police closed its investigation due to "no reasonable or probable grounds to lay charges" and the CAS conclud- ed its investigation with inconclu- sive findings. However, the school board considered its investigation still open, so the teacher remained on unpaid suspension. The teacher inquired about his status in July, to which the school board replied that its investigation must be concluded before it could offer him a position. The teacher provided a lengthy response out- lining the circumstances of each allegation, noting that the two stu- dents were close friends who may have made the allegations as retri- bution for him scolding them for behaviour that made the class late in returning to the school after a swim program. The school board was satisfied with the teacher's responses and determined no serious miscon- duct had occurred. It lifted the unpaid suspension on Aug. 8 and soon hired him as a permanent full-time teacher for the following school year. The union grieved the suspension as unfair discipline. The arbitrator noted that in the "private world of employment," there was no right against self- incrimination as there would be in a criminal prosecution or other state action. In this case, the ques- tion was not about the right to re- main silent, but rather "the right to remain silent consequence- free." The arbitrator found that the school board had "a compelling, legitimate interest" in having the teacher answer the additional questions due to the nature of the allegations, its duty to protect stu- dents, and the high standard of conduct for teachers — particu- larly since the teacher admitted to two of the allegations with no ex- planation or context. In fact, once the teacher pro- vided additional information, the school board was able to complete its investigation and exonerate the teacher. The arbitrator determined that the teacher's unpaid suspension was reasonable and justified in the circumstances. Reference: OECTA and Brant Haldimand Norfolk Catholic District School Board (1452-4). Bernard Fishbein — arbitrator. Dolores Barbini, Colleen Oldman, Mike McDonald, Katelyn Clutterbuck for employer. Bernard Hanson, Carla Hosseini, Tom Laracy for employee. Oct. 11, 2019. 2019 CarswellOnt 16445 to "stomach issues." At one point, she looked up and saw Sobat look- ing down on her from the next stall, recording a video with her cellphone. The employee said Sobat was friends with her sister-in-law and was spying on her so she could re- port her to her sister-in-law. The HR coordinator noted that the employee appeared "shaken up, scared, in tears, very disturbed." Another worker who checked and replenished washroom sup- plies also reported to her supervi- sor that she had seen Sobat in the washroom standing on the toilet with her shoes removed and her cellphone in her hand "as though making a video." The washroom worker asked Sobat what she was doing, to which Sobat responded with a "Be quiet" gesture and a fin- ger to her lips. Sobat and the other employee came out of their stalls at the same time and the other em- ployee accused Sobat of following her. The washroom worker also claimed that afterwards, Sobat came up to her and said, "If any- one asks you about what hap- pened, just deny it." The alleged spying victim didn't come to work over the next two days. When Rossdown con- tacted her to find out why, the em- ployee said she was so disturbed by the washroom incident that "she wanted nothing more to do with us." Sobat denied everything, in- cluding knowing the other em- ployee's sister-in-law. She said she went into the washroom while talking to a friend on her cell- phone but didn't climb onto the toilet seat or spy on her coworker. She said she heard coughing and asked the coworker if she was fine, to which the coworker accused her of talking to the sister-in-law and making a video of her from the top of the stall. However, the HR coordinator didn't believe this, given how the other employee had reacted and the good reputation of the wash- room employee. The employer decided to terminate Sobat's em- ployment, effective June 24, for "invading a coworker's privacy while using the washroom." The union argued dismissal was excessive for a first offence of an employee in her fourth year of service. It also argued that the other employee was fully dressed, "the mere fact of looking into an- other stall does not constitute an invasion of privacy," and the inci- dent was spur-of-the-moment. The arbitrator found that So- bat's denial of wrongdoing wasn't credible given several factors: the other employee's "state of upset" when she reported it, the account of the washroom worker — who was known as an honest employee with no reason to lie and reported the incident as soon as possible — and the consistency and timing of the accounts of the victim and the washroom worker. The arbitrator noted that So- bat initially denied knowing her accuser's sister-in-law, but in her testimony admitted that she had worked for Rossdown in the past. At that point, she said she "did not have much to do with her" but then agreed she knew her "rea- sonably well." The arbitrator also found there was no distinction between the privacy rights of a clothed person and one not fully dressed, par- ticularly in a washroom stall when having "stomach issues." The arbitrator determined that Sobat was guilty of serious misconduct. Her dishonesty in trying to cover it up — including trying to get another employee to be dishonest about it — justified dismissal. Reference: Rossdown Natural Foods Ltd. and UFCW, Local 1518 (Sobat). Joanie McEwan – arbitrator. Oct. 2, 2019. Keith Murray, Anastasia Fairfield for employer. Chris Buchanan for employee. 2019 CarswellBC 2975 Employee's denial of spying on coworker not credible < Flushes away pg. 1 < Consequences pg. 1 Ontario school board suspends teacher after refusal Investigation closed due to "no reasonable or probable grounds to lay charges."

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