Canadian Labour Reporter

6 Canadian HR Reporter, a Thomson Reuters business 2015 April 6, 2015 ing an affair with her superiors, and that is why she was perceived to be receiving preferential treat- ment. According to Gordon's union, the Ontario Public Service Em- ployees Union, the employer violated the collective agreement, particularly the non-discrimina- tion and sexual harassment claus- es, as well as the Human Rights Code and Occupational Health and Safety Act. OPSEU argued TCHC failed to conduct a reasonably diligent in- vestigation of the grievor's allega- tions of a poisoned work environ- ment. As well, the union further al- leged that the employer failed to act both promptly and reasonably to stop the harassment and dis- crimination. "The grievor was the victim of a sustained and significant poi- soned work environment created by the conduct of fellow employ- ees who engaged in malicious gossip based on the grossest ste- reotypes of race and gender," OP- SEU's counsel argued during the hearing, adding, "Management had taken no effective steps to stop the intense, sustained cam- paign of rumours." Both parties disagreed as to how much of an investigation was necessary. While TCHC has in place a pol- icy and mechanism to investigate allegations of harassment and dis- crimination, it said the rumours did not fall under that jurisdic- tion. However, evidence revealed management had followed up and interviewed the parties involved, but no definitive action was taken beyond those conversations. The TCHC believed it was not liable for the actions of its other employees, the so-called gossip mongers, and management acted within reason. "There was no suggestion or evidence that the employer failed to have policies and procedures in place, that it had failed to provide training, or had otherwise failed to establish the proper workplace foundation," TCHC explained. "The test was an objective test… Except in the face of particularly egregious standalone incidents, at law, there cannot be a finding of poisoned work environment in the absence of sufficient persistent and repeated incidents." Arbitrator Marilyn Nairn dis- agreed. She sided with the union, saying Gordon was indeed sub- jected to harassment, and suffered further because the TCHC did not handle the situation according to the collective agreement. "The workplace is heavily male- dominated and one where hier- archy and authority are valued. Where those attributes are valued, they may also be resented, par- ticularly in a woman," Nairn said in her decision. "The grievor presented as a strong, confident and assertive female within that environment. The workplace rumour contained the implicit, and in some cases explicit, message that the grievor was receiving preferred treatment at work from a supervisor in ex- change for sexual favours. That, I find, was related to her gender." As such, the grievance was up- held and Nairn remitted the mat- ter to the parties to determine ap- propriate remedy. reference: Toronto Community Housing Corporation and the Ontario Public Service Employees Union (OPSEU). Mari- lyn A. Nairn — arbitrator. Hilary Cook, Eric del Junco for the union, Donald B. Jarvis for the employer. March 16, 2015. Back-up firefighter fired for slow response gregory freer, a back-up firefighter at Lanxess, was dis- charged for an alleged delayed re- sponse to a fire emergency. The employer operates petro- chemical facilities in Sarnia, Ont. As part of its operations, it main- tains its own fire hall and pro- vides first responder emergency fire and rescue services for other companies operating nearby. At the time of his discharge, Freer had less than two years of service as an operator technician at the employer's BIOX waste- water facility. He also served as a back-up firefighter. When he was fired, Freer had multiple suspen- sions on his disciplinary record . The employer argued Freer en- gaged in culminating disciplinary misconduct that, given his record and short service, warranted the penalty of discharge. The union, however, argued Freer was discharged without just cause and requested he be rein- stated with full compensation and without any loss of seniority. At about 4 a.m. on Feb. 8, 2013, the fire hall put out an emergency alert regarding a fire at Styrolu- tion, a styrene producer at one of the employer's contract partners. Freer and the employer's fire cap- tain responded to the call. A few days later, concerns were raised regarding Freer's response time so the employer launched an investi- gation. The investigation indicated Freer took about 90 seconds to respond to the alert. When he did respond, Freer asked for the call to be repeated. The investigation also found Freer took much longer to arrive at the nearby Styrolution facility than was warranted by the snowy weather conditions. In addition to driving signifi- cantly under the speed limit, Freer was delayed by having to brush snow from the fire hall's vehicle. As part of his role as a back-up firefighter, Freer is responsible for making sure the fire hall vehicle is ready to respond to an emergency at all times. Freer was asked about these delays. He said he was flustered after hearing the call, saying he got "tunnel vision," which left him un- able to focus. Freer said he asked for the call to be repeated because he could not hear all of the details and wanted to be sure he was pre- pared before responding to the call. With respect to the route he took to the scene, Freer could not remember how fast he was driv- ing. He said he drove safely under the speed limit due to the snowy road conditions. The employer found that none of Freer's explanations justi- fied his delay in responding to an emergency alert, and his excuse of tunnel vision was found to be self- serving and without any concrete evidence. He was dismissed on March 25, 2013. His union, Unifor Local 914, grieved the termination. The union argued the employer failed to meet the onus of proving Freer's performance was culpable con- duct. Furthermore, the union said, Freer was never instructed dur- ing his training about minimum or maximum response times and there were no guidelines regard- ing expected response times. Even if his response was slow, the union submitted, this was a performance issue that should have been dealt with through further training rather than by a disciplinary process. The union requested Freer be reinstated with full compensation and seniority. If some discipline was warrant- ed, the union said, the penalty of discharge was too severe consid- ering the circumstances. Arbitrator George S. Monteith, however, found the union's argu- ment to be untenable. "To accept counsel for the union's argument would lead to the absurd conclusion that a fire service could never discipline a firefighter for a delayed response no matter what the circumstances or how much time the firefighter took to respond simply because it failed to establish and commu- nicate response time standards applicable in all emergency call,s" he said. The grievor knew that he was expected to respond immediately in the event of an emergency." Monteith found that waiting over 90 seconds to perform the basic and fundamental duty of responding to a fire emergency as quickly as possible is an unrea- sonable period of time for any fire- fighter. Monteith also found the inci- dent was a culminating incident and the employer was entitled to rely upon Freer's disciplinary record to support its position for dismissal. The grievance was therefore dismissed. reference: Lanxess Inc. and Unifor Local 914. George S. Monteith — arbitrator. Martin J. Addario for the employer, Mi- cheil Russell for the union. March 4, 2015. ArbitrAtion AwArds < from pg. 1

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