Canadian Labour Reporter

April 12, 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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another academic institution. The letter also stated that the official was "now negatively infecting your faculty." This wasn't the first time the of- ficial had been subject to harass- ment and defamation — there had been other letters and suspicious behaviour for years. At the offi- cial's previous institution, the po- lice had been involved. The letter was followed up by several other anonymous let- ters delivered to the mailboxes of other faculty members in the academic officer's faculty. Ryer- son's executive director of com- munity safety and security met with the senior academic official, who described the harassment she had been experiencing, both at Ryerson and at her previous institution, which had included two unexplained break-ins at her home. She said she was afraid for her safety and was concerned that the harasser could be in To- ronto because she had received a letter that she thought had been pushed under her office door at Ryerson. Ryerson security contacted the Toronto police, who requested that the letters be retrieved. Ryer- son's director of community safety instructed security officers to open the locked faculty mailboxes with the master key, where they found 47 unopened letters that they gave to police. The Ryerson Faculty Associa- tion (RFA) complained that "the university administration has no right to unilaterally determine what mail will or will not be de- livered to the faculty" and argued that the administration's actions "reflect a profound disregard for the privacy rights of faculty mem- bers and staff." The university offered to let af- fected faculty members review the letter that the president had re- ceived and informed the RFA that Ryerson security had removed envelopes from the members' mailboxes at the request of police as part of an ongoing investigation related to the academic official. It noted that security didn't open the envelopes and the university didn't know what was inside. Ryerson followed up with a let- ter to the RFA saying that it be- lieved that an "imminent threat" was at hand, but going forward it would request a search warrant from police that would authorize such a search of the locked mail- boxes. The university also amend- ed its operating procedure relating to the provision of personal infor- mation to law enforcement and committed to providing a copy to the RFA. However, the RFA filed a grievance related to the search of the mailboxes. The arbitrator found that the faculty members had a reasonable expectation that their individual locked mailboxes would not be opened by the university without their permission or a threat to safety, or by police without a war- rant. Although the fact that the mailboxes were on Ryerson prop- erty and there was a master key reduced that expectation, there was still some reasonable expec- tation of privacy, particularly in an academic environment "gov- erned by academic freedom," the arbitrator said. The arbitrator noted that Ryer- son could have sought permission from the faculty members to open their mailboxes or required police to obtain a warrant, but instead unilaterally decided to open the mailboxes and retrieved the let- ters. "[Ryerson] failed to protect the privacy interest of the affected faculty and thereby breached the implied restriction upon it under the collective agreement to rea- sonably exercise its management rights," said the arbitrator. Ryerson was ordered to pay $400 in damages to each affected faculty member for the "unreason- able exercise of managerial discre- tions" that violated the collective agreement. Reference: Ryerson University and RFA. Kevin Burkett — arbitrator. Gerald Chan for employer. Emma Phillips for employee. Sept. 17, 2020. 2020 CarswellOnt 19711 had to self-isolate for various rea- sons — one had been on vacation in Mexico and was required by law to quarantine, a second had been exposed to someone who had recently travelled outside Canada, a third had participated in a snowmobile rally that became the source of an outbreak, and a fourth's wife had been exposed to someone at her work who exhib- ited symptoms. The employees were told that they could use vacation or per- sonal days to cover lost wages for the self-isolation period or apply for employment insurance (EI) benefits. One applied for the Canada Emergency Response Benefit (CERB), and another used two personal days during his absence. The union filed a grievance, arguing that the employees self-isolated due to P&H's ex- pectation augmented by health directives. P&H treated the em- ployees as if they were infected and contagious, so they should be entitled to the benefits of the company's sick-leave program, said the union, adding that the collective agreement stated that the program's purpose was "to ensure employees who are un- well do not lose earnings while they are ill and unable to work; and to prevent the spread of ill- ness within the workplace." Em- ployees shouldn't be financially penalized for disclosing poten- tial COVID-19 exposure and fol- lowing the purpose of preventing the spread of illness within the workplace, it said. P&H disagreed, saying that the collective agreement and the sick- leave program related to sickness — employees had to present a doctor's certificate to qualify for sick pay. It also pointed out that there were other ways employees could recover income lost while self-isolating such as EI, CERB, vacation and personal days. The arbitrator noted that the grievance was "essentially about who bears the loss within this workplace" when workers were required to be absent due to CO- VID-19 isolation requirements. Both employers and employees have obligations under provincial health and safety legislation to help ensure a safe workplace, and "there is no doubt that potentially transmitting COVID-19 to co- workers would constitute a haz- ard," said the arbitrator. The arbitrator also noted that employers aren't obligated to pay employees who aren't work- ing unless required by legislation and the common law established that employees aren't entitled to be paid if they don't work, sub- ject to contractual modification. In this case, the sick-leave pro- gram was specifically meant to "ensure employees who cannot work due to a relatively short- term illness can continue to re- ceive their usual income," said the arbitrator The arbitrator found that the collective agreement didn't re- quire P&H to provide sick pay as there was no illness requiring confirmation by a doctor's certifi- cate. There was also no legal obli- gation for P&H to pay employees who weren't working. There were other options for the employees to recoup at least some of their lost income, about which P&H informed them and at least two of the employees used. The griev- ance was dismissed. Reference: UFCW, Local 1400 and P&H Milling Group. Leslie Belloc-Pinder — arbitrator. Dustin Gillanders for employer. Rod Gillies for employee. Jan. 26, 2021. 2021 CarswellNat 311 Workers weren't sick but couldn't come to workplace Employer shouldn't have opened locked boxes: arbitrator

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