Canadian Labour Reporter

October 19, 2020

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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The worker filed a workplace discrimination and harassment complaint (WDHC), also citing instances of comments and sexu- al innuendo between the trainers and the participants. The co-trainer apologized for his behaviour, saying he hadn't meant to offend anyone and he "sincerely" regretted that it upset anyone. However, word about the WDHC spread and allies of the co-trainer began filing numer- ous occurrence reports (ORs) against the worker, claiming she had engaged in bullying, harass- ment, and other inappropriate behaviour. One filed a workplace violence complaint that claimed the worker threatened her. The ministry found the work- place violence complaint and many of the ORs were without merit, dismissing several ORs without telling the worker about them. The investigation concluded in January 2015 and found no evidence that the sex toy being black had racial connotations. It found that the co-trainer had en- gaged in sex discrimination and a poisoned work environment, but the worker had been complicit in the conduct in the training ses- sions and had contributed to the poisoned work environment. The ministry suspended the worker for eight days for not up- holding the level of profession- alism expected of "an employee of the Ontario Public Service, a correctional officer and, more importantly, a defensive tactics instructor." The co-trainer was also disciplined. By 2016, the worker and the co-trainer had been assigned to separate working areas. How- ever, on April 26, the worker was assigned to the co-trainer's area and she asked the supervisor about it. According to the work- er, the supervisor berated her and she reported it to the deputy superintendent. The co-trainer filed ORs about the worker being in his work area. The union filed two griev- ances claiming harassment and bullying with racial and sexual elements and that the ministry had failed to follow protocols by scheduling her with the co-train- er after they had been separated. The arbitrator found that management had "turned a blind eye" to the turmoil at the institu- tion that led to the sex toy inci- dent and the numerous ORs. The arbitrator also disagreed that there was no racial element. "A white man producing a black dildo in the presence of a racialized woman at a training course in a women's corrections institution is discrimination on the basis of race or colour as well as sex," said the arbitrator. The arbitrator found that the incident was a violation of the collective agreement's prohibi- tion of discrimination and that management breached another collective agreement article re- quiring the employer to "make reasonable provisions for the safety and health of its employ- ees" when it failed to investigate some of the ORs or inform the worker about them. In addition, management failed to advise su- pervisory staff of the decision to keep the worker and the co- trainer apart, causing the worker to be assigned to the co-trainer's area. The arbitrator allowed the grievances and ordered the min- istry and the union to negotiate an appropriate remedy. Reference: OPSEU and Ontario (Ministry of the Solicitor General). Daniel Harris — arbitrator. Thomas Ayers for employer. Ian McKellar for employee. Sept. 22, 2020. 2020 CarswellOnt 13695 Institution didn't scrutinize harassment complaints Shop steward only unqualified for certain jobs the last carpenter laid off as long as they were qualified to perform any work still remaining. In ad- dition, in the event of a layoff or work stoppage, stewards were to be the first carpenter hired back when work resumed. The collective agreement also allowed a company to request specific people for a job from a union database of members with qualifications and safety training. In October and November 2019, a company that was part of the CLRA requested and hired a number of journeymen to work on a construction site, all need- ing WHIMIS and fall-protection safety certificates. The union ap- pointed Darren Targett, a jour- neyman carpenter with the nec- essary safety requirements, as shop steward. In early March 2020, there was an accident at the worksite involving a scissor-lift operated by Targett. An OHS inspection officer determined that Targett didn't have a valid scissor-lift safety certificate and ordered that he not operate such a lift without the required training. However, he was still able to work in an assistant role with the lift because of his fall protection cer- tificate. In mid-March the province is- sued medical directives to shut down construction projects due to the COVID-19 pandemic. A few weeks later, the com- pany requested eight journey- man carpenters and two appren- tices to start work again. The safety requirements included a scissor-lift certificate in addition to the WHIMIS and fall protec- tion ones from before. The origi- nal crew also returned to work, meaning there was a surplus of carpenters. After a couple of weeks, the company temporarily shut down the area where Targett was work- ing. A short time later, the com- pany recalled a total of 10 car- penters to do both scissor-lift and ground-level work but Targett wasn't notified to return to work. The union inquired as to why Targett wasn't recalled and the company said that he "is not our best worker" and suggested the union name another carpenter onsite to be the shop steward. The company had not informed the union of any issues it was hav- ing with Targett, so the union filed a grievance claiming the company violated the collective agreement requiring the steward to be the first carpenter brought back after a layoff. The company countered that Targett wasn't qualified to do the work because he didn't have a val- id scissor-lift certificate and the OHS order prevented him from using a lift. It also argued that Targett wasn't as productive a worker as it needed and his shop steward role interfered with his focus on the job. The arbitrator found that there were between two and four scis- sor-lift positions on the worksite, meaning there were six to eight carpenter positions that didn't require a scissor-lift certificate, despite the company's indicated requirements. Since the evidence indicated there was work at the site that didn't require the scis- sor-lift certificate — including the fact that Targett continued to work after the OHS order — the arbitrator found that Targett was qualified to work on the site. As a result, the arbitrator de- termined that the company failed to follow the collective agree- ment when it didn't lay off Targett last, didn't recall him first when he was qualified to work on the site, and removed him from the worksite without consultation or explanation to the union. The company was ordered to rein- state Targett with compensation for lost wages and benefits. Reference: Construction Labour Relations Assn. of Newfoundland and Labrador and UBJCA, Local 579. Andrew Butt — arbitrator. Chester Remley for employer. David Mombourquette for employee. Sept. 21, 2020. 2020 CarswellNfld 244

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