Canadian Employment Law Today

Canadian HR Reporter, 2021 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases tigated and determined that the incident had happened as the supervisor reported. It suspended the worker for 10 days without pay, which he served in late August and early September. The worker returned to work on Sept. 5 without incident. In the meantime, Trillium removed the Queensway Health Centre from the supervisor's regular rotation in order to separate her from the worker; normally, the supervisor rotated equally among the three sites operated by Trillium. Post-suspension transfer On Oct. 28, the worker advised Trillium that she felt she was being punished for com- plaining about the assault. Of the three lo- cations in her normal rotation, the Queen- sway Health Centre was the least demanding and the worker considered it a break from the busy workload she faced at the other two locations — a sentiment that was shared by others with her responsibilities. She felt it was unfair that she wasn't being allowed that break in her workload that others were getting in their rotations, so she requested a return to her regular rotation. Trillium sought consent of the union to relocate the worker to accommodate the supervisor's request, but the union refused, saying the worker had already been pun- ished and relocating him would amount to a second punishment for the same miscon- duct. However, Trillium proceeded without the union's consent to transfer the worker to another location anyway, telling the worker on Jan. 9, 2020 that it was an "administra- tive decision necessary to restore a safe work- place for the co-worker you assaulted on July 29, 2019." The worker had to work a rotat- ing shift schedule at the new location, which was different from the straight day shift he had worked at Queensway. The union filed a grievance. The arbitrator found that the decision to transfer the worker "related back" to the as- sault and, although Trillium had indicated its expectations on the worker regarding his interactions with other employees and the victim of the assault, it revisited its decision after the worker had served his suspension. In addition, the transfer from a straight day shift to a rotating one where he could work as late as 11 p.m. "had a penalizing effect on him, over and above the penalizing effect of the unpaid suspension." The arbitrator determined that the transfer was "double jeopardy" and violated the rule that an employer could not impose more than one penalty for the same offence. The arbitrator ordered Trillium to rescind the transfer. Trillium appealed to the Ontario Superior Court, claiming that the arbitrator didn't properly account for its obligation to pro- vide a safe workplace for the assault victim. The transfer decision was in response to the victim calling to its attention a further im- pact of the assault that she was denied the workload respite that came with working at the Queensway Health Centre. As a result, the transfer was for legitimate business rea- sons, not to further punish the worker, said Trillium, adding that the worker still per- formed the same job for the same pay at a location that wasn't far away from his origi- nal location. Health and safety obligations in play The court found that there was no suggestion that the arbitrator determined that Trillium shouldn't act on its obligation to keep the assault victim safe. Instead, the arbitrator determined that transferring the worker, at least at the time of the decision, wasn't the right way to do it, which was a reasonable decision, said the court, which added that Trillium could not, after the fact, change the penalty imposed on the worker for his mis- conduct in order to meet its obligations to the victim. The court also found that Trillium should have taken a broader look at the situation, including a balance of the "competing val- ues of meeting its obligation to the [victim] and of protecting the [worker] (also an em- ployee) from double jeopardy." Trillium backed itself into a corner when it changed the victim's work rotation without consid- ering its effect on her and proceeding with suspending the worker as his discipline, the court said. "[Trillium] should have foreseen the prob- lem that the [victim] subsequently raised and considered it at the time it determined the punishment to be imposed," said the court in dismissing Trillium's appeal. "Hind- sight being uncertain, it is not possible to know whether in that circumstance the hos- pital would have determined to transfer the [worker] or found some other solution." For more information, see: • Trillium Health Partners v. CUPE, Local 5180, 2021 ONSC 1045 (Ont. S.C.J.). « from TRANSFER on page 1 Assault victim was unfairly denied easier shifts at worker's location The transfer from a straight day shift to a rotating one had a penalizing effect on the worker, over and above the penalizing effect of the unpaid suspension. CREDIT: PETERSPIRO iSTOCK

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