Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2014 August 5, 2014 ArbitrAtion AwArds place injury. The matter could not be re- solved with her shift superin- tendent, so Brusseau arranged a meeting with the next higher-up, the shift manager, as per normal protocol. However, she alleged the man- ager refused to meet with her because she was accompanied by another union steward. Brusseau said she was told to "get out." Being a union steward, she be- lieved the relationship between her, as a union steward, and her managers was already strained. Later that afternoon, the shift superintendent approached Brusseau and asked whether her complaint had been resolved. That interaction motivated the grievance. According to Brusseau, she was approached by the shift su- perintendent on the floor, in front of half a dozen co-workers, and asked whether she had gotten what she needed to resolve the issue. Embarrassed, Brusseau re- plied, "No, please leave me alone." Her superintendent pressed, inquiring what it was that didn't get resolved, but eventually an- other employee walked over and the exchange ended. The incident, as described by Brusseau, was "horrible, upsetting, embarrassing and humiliating." She filed a grievance alongside the Canadian Union of Postal Workers and sought a declaration that Canada Post violated the col- lective agreement, as well as $500 in damages for the emotional distress and frustration Brusseau suffered. However, Canada Post argued Brusseau misinterpreted the exchange, and there was no evi- dence to suggest otherwise. When the shift supervisor ap- proached the worker, she did so out of genuine concern for a health and safety matter, and it was done "in passing." "(The superintendent's) con- duct was not egregious, harsh or vindictive — elements necessary to warrant monetary damages," the Crown corporation argued. "There was no evidence of a last- ing impact…Bad feelings are an insufficient basis for a damage claim." In his decision, arbitrator Al- len Ponak partially sustained the grievance. Canada Post did in- deed violate the collective agree- ment — particularly the clause pertaining to an employee's right to complain. "This breach, absent some rea- sonable explanation for the con- duct, ought to attract more than a declaration," Ponak said. "It deni- grates union rights, chills work- place dispute resolution efforts and disrespects employees. Some damages are appropriate." But the exchange between Brusseau and her superior did not amount to harassment or improper conduct, Ponak said. Thus, she was only awarded $100 for the breach of the complaint clause. Reference: Canada Post Corporation and the Canadian Union of Postal Workers (CUPW). Allen Ponak — arbitra- tor. Kristie Faasen for the employer, Greg McMaster for the union. June 1, 2014. Jewish college employee claims discrimination based on creed An ontARio arbitration board dismissed Harvey Kaduri's griev- ance alleging discrimination. Kaduri — a full-time teacher at Seneca College — filed a griev- ance against the institution. Through his union, the Ontario Public Service Employees Union (OPSEU) Local 560, Kaduri al- leged the college discriminated against him on the basis of creed. Kaduri is Jewish, and as part of his commitment to his faith he is required to give back to his com- munity. He felt he could best ful- fill this commitment by teaching technology part-time at the only Jewish high school in Toronto. The employer accommodated his morning teaching schedule at the high school by scheduling all of his college classes after 1 p.m. In June 2012, however, the em- ployer implemented a new auto- mated scheduling system. Under the new system classes would be scheduled automatically accord- ing to the demand for particular courses and the availability of teachers. Accommodations would be made for medical disabilities but the employer made no indication it would accommodate religious requirements. While the implementation of the new scheduling system meant the employer could no longer commit to accommodating Ka- duri's request to only teach after- noon classes, it continued to do so. Kaduri was informed, how- ever, that his schedule could not be accommodated for the 2014- 2015 academic year. The union filed a grievance, claiming the employer's refusal to continue ac- commodating Kaduri constituted a failure to accommodate his reli- gious beliefs and therefore consti- tutes discrimination on the basis of creed. The employer argued the union failed to establish a prima facie case that it was discriminat- ing against him. The employer asserted Kaduri was required to establish he is required by his re- ligious belief to maintain employ- ment at the high school. That is, Kaduri needed to prove his reli- gion required him to maintain a second position at the high school in exchange for wages. The employer argued Kaduri did not prove this point and in fact claimed simply that he is re- quired by his religion to "give back" to his community. The employer put forth it cannot be forced to accommodate his par- ticular choice of how to fulfill that requirement. The employer's inability to ac- commodate his second position at the high school in no way in- fringes on Kaduri's ability to give back to his community and there- fore no discrimination based on creed took place, the employer said. Counsel for the union argued that if Kaduri sincerely believes he is required by his religious be- liefs to give back to the commu- nity through his role at the high school, that practice must be ac- commodated. "The difficulty with the union's position is that it is not asserted that it is the grievor's sincerely held belief that he is required to teach at (the high school) on a part time basis in exchange for wages," the arbitration board said in its ruling. "Rather, that is a choice he has made as the means of fulfilling his requirement to give back to his community. Sure- ly there are many ways in which the grievor could fulfill his obliga- tion to give back to his commu- nity." The arbitration board — made up of chair Norm Jesin, employee nominee Carla Zabek and union nominee Pamela Munt-Madill — went on to say it is not Kaduri's requirement to give back that is being infringed, but his particular choice of how to fulfill it. "This does not constitute an in- fringement of a religious require- ment in our view and therefore the particulars, even if accepted, do not constitute discrimination on the basis of creed." The grievance was dismissed. Reference: Seneca College and the Ontario Public Service Employees Union Local 560. Arbitration board: Norm Jesin, chair; Carla Zabek, employer nominee; Pamela Munt-Madill, union nominee. Kathryn J. Bird for the employer, Jesse Isaac Gutman for the union. July 23, 2014. < from pg. 1

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