Canadian Labour Reporter

MARCH 31, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 which the employer made its selection, rather than the merits of decision." Seldom is the selection process perfect, Hood continued, but the process the city established was both fair and reason- able, and hardly arbitrary, capricious or discriminatory. As a result, the grievance was dismissed. Reference: The City of Regina and the Canadian Union of Public Employees Local 21. William Hood — arbitrator. Katrina Swan for the employer, Guy Marsden for the union. Nov. 14, 2013. Union raises stink over odour problem THE MEMORIAL UNIVERSITY of Newfoundland Faculty Associa- tion raised a stink over the university's alleged negligence in responding to an odour problem. The union filed a grievance on behalf of Sue Ghazala, an associate professor in biochemistry for the university's faculty of science. Ghazala specialized in food research and the union claimed the university was unduly negligent and slow in re- sponding to odour problems in her laboratory. Efforts to solve the odour issue resulted in Ghazala being deprived of proper lab and office facilities for two extended periods — first between January and August 2010, and again between May 2011 and July 2012. Ghazala was hired by the university in 1991. She occupied a suite of rooms in the science building which include labora- tories, storage areas and her office. Ghazala's lab shared both a ventilation system and an effluent drainage system with a neighbouring lab. For several years Ghazala's lab experienced "strong noxious odours." There is no dispute about the sever- ity of the odour or the legitimacy of Ghazala's requests it be addressed. Tony Dawe — a mechanical engineer employed by the com- pany providing consulting services to the university — testi- fied the initial problem was believed to be related to ventila- tion as it did not appear the odour originated in Ghazala's lab. As a result of investigations a number of ventilation up- grades were recommended and carried out. The shared venti- lation system was demolished and a new one featuring sepa- rate exhaust systems for each lab was installed. The odour problem persisted. Dawe explained he then turned his attention to the plumb- ing system. A shared dilution pit collected drainage from both labs and treated them before discharge. By inserting a camera into the dilution pit Dawe discovered the effluent drainage piping had collapsed under Ghazala's lab. Soil samples were extracted to determine whether it was safe to open the floor. When it was deemed safe to do so, a second renovation was undertaken to replace the under- ground piping and install a new dilution pit. Following the renovation of the laboratories' plumbing sys- tem, there were no further odour problems. In addition to preventing Ghazala from making use of her lab or office during the lengthy periods of construction, the renovations resulted in significant damage to her equipment and the destruction of some working samples. The university claimed it made all reasonable efforts to resolve the odour issue in Ghazala's lab — doing so at a sub- stantial expense — and denied any violation of its duties un- der the collective agreement. The university also said Ghazala had an obligation to mitigate her situation given the disrup- tion of her lab, suggesting she could have pursued research through other means. The union submitted the renovations — paid for by govern- ment funding — were done because they were necessary to comply with mandatory orders from the Occupational Health and Safety Inspections Branch of the government of New- foundland and Labrador. The union also noted the earliest of these orders extended as far back as 2007, asserting a four- year period with no effort by the university to fix the problem constituted an extraordinary lag in response time. The union requested the arbitration board order the uni- versity to repair and/or replace all of the damaged or missing equipment and provide Ghazala with an office space indepen- dent of her lab. Following the second renovation, the university argued, there had been no further air quality or odour problems and therefore no grounds to provide an alternative office space. During the renovations there were no functioning laboratories with the equipment Ghazala needed to continue her work, the university testified. While unfortunate, her displacement dur- ing the renovations was unavoidable and was not in violation of the collective agreement. The board of arbitration agreed, ruling, "We are not per- suaded that the period of time that Dr. Ghazala was effectively deprived of the use of her laboratory was unreasonable or excessive, or in violation of the university's obligation un- der… the collective agreement. Nor, absent any meaningful evidence of the availability of similar laboratory facilities, can we conclude that the university improperly failed to provide equivalent facilities to Dr. Ghazala during the renovation pe- riods." Because Ghazala's current office is, for all practical pur- poses, safe and free of unacceptable odours, the board found no grounds to order the university provide her with new ac- commodations. The board did, however, find the university had a duty of care with respect to the protection of Ghazala's materials and equipment during the course of the renovations. The grievance was allowed, in part, with the board order- ing the university to compensate Ghazala for the damage to her equipment and the loss of her working samples. Reference: Memorial University and the Memorial University of Newfoundland Faculty Association. Michel G. Picher, Geoff Williams and Gail Blair Storr — Board of Arbitration. Dar- ren C. Stratton for the employer and Sheila H. Greene for the union. Feb. 25, 2014. Subscribers can view arbitrations from past issues on www.labour-reporter.com, which also includes a searchable archive of collective agreements.

• Cover