Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2015 More Cases Harassment grievance can't demand discipline or dismissal: Arbitrator THE DECISION to discipline or dismiss an Ontario supervisor rests with the employer, not as a remedy to a harassment grievance, an arbitrator has ruled. e collective agreement between the Toronto Community Housing Corpora- tion (TCHC) and its union confirmed that TCHC had the exclusive right to discipline employees and manage its operations. An employee of TCHC filed two griev- ances against her supervisor claiming the supervisor harassed her multiple times from 2008 to 2013. As part of the griev- ances, the union demanded that TCHC discipline or terminate the supervisor's employment. TCHC filed a preliminary motion, arguing that regardless of the out- come of the grievances, the arbitrator had no jurisdiction under the collective agree- ment to order it to discipline or terminate the supervisor. TCHC further argued that while the arbi- trator could order that the supervisor must stay away from the employee complaining of harassment, only TCHC had the right to dictate the employment relationship and deal with the supervisor in the way it felt best. e supervisor himself argued that ter- mination of his employment required "full consideration of all the reasonable cause factors" and simply ordering TCHC to do so without that consideration was illegal. In addition, the supervisor was not a member of the bargaining unit and therefore his em- ployment relationship was not subject to the collective agreement. e arbitrator noted that the Supreme Court of Canada had confirmed "a broad jurisdiction on arbitrators to resolve the essential nature of a dispute arising from a collective agreement." However, the issue of discipline or termination of non-bargaining unit employees was still up for debate, said the arbitrator. e arbitrator found that while employers had the right to exercise management rights, it was open to arbitrators to review that ex- ercise of management rights and they had the authority to intervene if an employer was acting "in a manner that defeats specific col- lective agreement rights." Looking at the case precedents, the arbi- trator found "while remedies for harassment grievances have been granted by arbitrators for many years, there is not a single deci- sion where an order requiring an employer to discipline or terminate an employee has ever been issued." is was because a ratio- nal connection between the remedy and the breach of the collective agreement must ex- ist and there has never been "a rational con- nection between the safety of the workplace and the employer's legal relationship with the offending employee, as opposed to the offending employee's involvement and con- duct while in the workplace," said the arbi- trator. For there to be a rational connection be- tween ensuring the harassed employee's safety and terminating the supervisor, "it would have to be determined that a safe workplace was dependent on actions that went beyond the workplace, extending to how the employer managed its relationship with parties outside the collective bargain- ing relationship and outside the collective agreement. I cannot imagine on what facts that could possibly be established," said the arbitrator. e arbitrator disagreed with the supervi- sor's assertion that an order to discipline or terminate him would be illegal, as the TCHC had the right to terminate him with or with- out cause with enough reasonable notice or pay in lieu, if necessary. e arbitrator also found there were no al- legations that the harassment had continued in the two years following the filing of the grievances, so the union could not establish that "a harassment-free workplace cannot be achieved without the remedy of discipline or termination of (the supervisor)." e arbitrator allowed TCHC's prelimi- nary motion that there was no basis for a re- medial order to discipline or terminate the supervisor's employment. See Toronto Com- munity Housing Corp. and CUPE, Local 79 (Zhang), Re, 2015 CarswellOnt 10237 (Ont. Arb.). week, she discovered she was paid her regu- lar rate for the extra shift. Sas Capital con- sidered the five hours she worked on her day off, along with the three-hour meeting earlier in the week, to be regular hours be- cause she was originally scheduled for only 32 hours that week. e extra five-hour shift put her at 40 hours for the week, which didn't warrant overtime pay under the collective agreement, said the employer. e union filed a grievance, arguing the collective agreement stipulated Kraus was owed double time for working on a sched- uled day off. Sas Capital said double time was only owed if the employee was required to work on her day off. Kraus was asked to do it and she accepted – she wasn't required to work and had the right to refuse. In addition, the collective agreement allowed for over- time pay when more than 40 hours per week was worked, which wasn't the case here, the company said. Sas Capital argued if double time was paid for an extra shift when less than 40 hours per week was worked, it amounted to a shift premium, not overtime pay, which was not provided for in the collective agree- ment. e arbitrator found that while "there may well be a distinction between work that at- tracts overtime pay and work that attracts a shift premium, the parties in this collective agreement have not made any such distinc- tion." e collective agreement stipulated that both work in excess of normal hours and work on scheduled days off attracted overtime pay, though at different rates, said the arbitrator. e arbitrator also found that excluding an employee who was offered and accepted a shift on a day off – technically not required to work – would be too narrow an interpre- tation of the plain language meaning of the collective agreement provision. In addition, there was no change to the schedule, Kraus was just asked to work on her scheduled day off. "In my view, 'required to work' is not lim- ited to work that is against one's wishes, but in this collective agreement is work that is offered and accepted, not against the em- ployee's wishes," said the arbitrator. "An- other way to look at this is when the work is offered, as it was in this case by the employer and was accepted by (Kraus), the employee was then required to work that (day)." e arbitrator noted that the collective agreement gave two overtime rates for two different circumstances and Sas Capital con- trolled whether or not it offered overtime work. If it didn't want to pay someone double time, it could ask another employee already working to work extra hours, in which case the rate would be one-and-one-half times the normal rate. e arbitrator found Sas Capital breached the collective agreement by not paying Kraus double her regular pay rate on her extra five- hour shift. e company was ordered to pay Kraus the difference. See RRR SAS Capital Facilities Inc. and SEIU – West (Kraus), Re, 2015 CarswellSask 363 (Sask. Arb.). Worker's choice to work « from OT PAY on page 1

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