Canadian Labour Reporter

8 Canadian HR Reporter, a Thomson Reuters business 2015 May 18, 2015 the job. The first time Henderson peti- tioned an arbitrator alongside the International Association of Ma- chinists and Aerospace Workers (IAMAW) union, she and another female employee alleged discrimi- nation and harassment. That grievance was heard and settled by arbitrator Gabriel Somjen, who ordered the employer and union to address its policies. For the current case, the union claimed the settlement agreement had been breached as well as the Human Rights Code and clauses pertaining to discrimination and harassment in the collective agreement. The incident in question oc- curred just days after the first grievance was settled, and, as per Somjen's orders, Henderson's su- pervisor asked all employees in a routine morning meeting how to better conduct a workplace to mitigate discrimination. The union alleged — and the employer promptly denied — that the supervisor made comments regarding his emotional and phys- ical hardship sustained as a result of the mediation process. Hender- son believed these comments to be directed toward her, as she was the grievor, and felt "singled out." She approached the human resources department, which as- sured her it would conduct an in- vestigation. Following the internal investigation, and based on em- ployee interviews, the company determined the incident in ques- tion could only be boiled down to a he said-she said argument. The IAMAW alleged the initial investigation was flawed, as three employees (or would-be wit- nesses) were not part of the initial interrogation. Also, the supervi- sor's actions further evidenced the overarching culture of harass- ment. Conversely, the employer ar- gued Somjen did not have juris- diction to preside over the case as the union, for the second griev- ance, relied heavily on violations of the Human Rights Code and provisions that mentioned the code in the contract, not the spe- cifics of the individual company's employment policies. However, precedent does ex- ist for arbitrators loosely relying on employment standard-based grievances, Somjen said. "It is now well established… that an arbitrator has jurisdiction to hear allegations that there were violations of employment-related statues such as the Human Rights Code, even if the collective agree- ment does not contain language prohibiting the alleged miscon- duct," he said. Somjen also determined that, while the supervisor did in fact make the comments, he did so with sincere intent. "(His) intent was not to hurt Henderson but rather he was ex- pressing his own hurt feelings in a form and manner which were inappropriate…His comments were not merely foolish, they were harassing and retaliatory," the rul- ing reads. Though IAMAW initially wanted $8,000 awarded in dam- ages, Somjen determined $2,000 was more appropriate, as "all involved in these matters are sincerely trying to get past the problems that gave rise to these grievances in the first place." One further remedy was or- dered for both the employer and the union to seek out the provin- cial labour relations board's "rela- tionship enhancement program", which might assist in mending current or future conflict. Reference: I.G. Machine and Fibres and the International Association of Machinists and Aerospace Workers (IAMAW) Local 692. Gabriel Somjen — arbitrator. Carole Hoglund for the employer, Paul Pelletreau for the union. April 23, 2015. union meeting brawl leads to backlash seVeRal PuncHes may have been thrown at a union meeting but it was ultimately one hit — hit- ting "send" — that resulted in Ev- erett Godfrey's suspension. Godfrey, the president of the Canadian Union of Public Em- ployees (CUPE) Local 1251, was suspended for three days after he used his employer's email system to share his opinions regarding a fight that took place during a union meeting. He grieved the suspension, seeking to be paid all lost wages and benefits affected by the sus- pension and to have all letters as- sociated with the suspension re- moved from his files. On May 9, 2013, the union held a meeting to discuss ongoing ne- gotiations with the New Bruns- wick Department of Public Safety. During the meeting, an employee identified only as "ML" started to disrupt the meeting, making comments about the union repre- sentatives' families. A request was made for the sergeant-at-arms, who was not present. Another employee offered to act as sergeant-at-arms, and at- tempted to escort ML from the meeting. ML attempted to strike the acting sergeant-at-arms, and employees in the area ended up in a shoving match. ML was even- tually removed from the prem- ises and the Saint John Police were called to the scene. On May 11, 2013, Godfrey sent an email through the employer's email system in order to inform the union membership of the events at the meeting. "Unfortunately ML decided to make this meeting a platform for his banter and nonsense," the email read in part. "I had hoped that we were old enough and pro- fessional enough not to let this happen. The actions of ML at this meeting were nothing short of horrendous. He is… supposed to be a professional person and he carried on like a complete asshole." The email, Godfrey said, was the result of years of frustration with ML. Following the email, Godfrey was invited to a meeting with management on June 4, 2013. The following day the employer issued a letter of suspension, telling God- frey his actions were inappropri- ate, disrespectful and insubordi- nate. The union argued the suspen- sion was too harsh a penalty for a long-time employee with no previous discipline. Because of Godfrey's condensed work day, the union said, the three-day sus- pension constituted a loss close to a full week's wages. The employer, however, argued suspension was appropriate be- cause Godfrey's actions were pre- meditated and deliberate. He had a chance to consider the email before he sent it to all members of the bargaining unit, including ML. The employer said the disrespectful tone of the email was unacceptable and contrary to its policies on staff conduct and email usage. Arbitrator Guy Couturier agreed Godfrey's email was inap- propriate. "In my opinion," Couturier said, "the proper use of the commu- nication system, by and between civil servants in the pursuit of their duties, so as to be appropri- ate, must be respectful and meet suitable business standards or conventions. It is not to be used as a bully pulpit by those accessing it to speak out on any issue that cur- rently bothers them." However, Couturier found there were mitigating circum- stances to be considered. Godfrey's 13 years of service without discipline and the union's interests in being able to commu- nicate with its membership were important factors, he said. Couturier also found the em- ployer's decision to implement punitive measures without ever attempting to engage Godfrey in the "curative phase" of progressive discipline was harsh and dispro- portionate. As a result, Couturier substi- tuted the suspension for a written warning and ordered Godfrey be reimbursed for all lost wages and benefits and that the suspension letter be removed from his per- sonnel file. Reference: The Board of Management of New Brunswick as represented by the Department of Public Safety and the Ca- nadian Union of Public Employees Local 1251. Guy G. Couturier — arbitrator. Michelle Brun-Coughlan for the employer, Marcos Salib for the union. Feb. 21, 2015. ArbitrAtion AwArds < from pg. 1

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