Canadian Labour Reporter

on his race. He indicated that his immediate supervisor — who is also a person of colour — and three other supervisors perpetrat- ed the harassment. Blackburn claimed the verbal warning was discriminatory be- cause colleagues who were white were also late and didn't always wear their uniforms weren't also disciplined. He also said the TDSB monitored his performance more closely than others and other white employees had similar per- formance issues, resulting in him being held to unreasonable per- formance standards while the school was short-staffed. Blackburn also said the head caretaker had failed to advise him about a shift leader train- ing course and refused to rotate the acting shift leader position so Blackburn could give it a try. In addition, he accused the head caretaker of taking down notices Blackburn had posted in the care- takers' office while Blackburn was warned for removing outdated work orders. The TDSB hired an indepen- dent investigator to look into Blackburn's complaint. However, during the investigation, the su- pervisors and two anonymous employees made serious allega- tions against Blackburn's be- haviour in the workplace. These allegations weren't discussed with Blackburn before he was transferred to another school and Blackburn claimed the transfer was discriminatory as well. The independent investiga- tor began to focus on the new al- legations and didn't interview the head caretaker about Blackburn's lateness and didn't ask the super- visors if they scrutinized Black- burn more than other caretakers. She also didn't look into a claim by Blackburn that the head care- taker fabricated an earlier com- plaint by the school's daycare that he removed a chair or whether the TDSB investigated that com- plaint. Despite not checking into these issues, the investigator deter- mined there was no discrimina- tion against Blackburn and his transfer was appropriate. She also recommended he be moved under TDSB policy, though the policy indicated a respondent, not a complainant, could be trans- ferred. Blackburn's union, the Cana- dian Union of Public Employees (CUPE), filed a grievance on his behalf accusing the TDSB of vio- lating the collective agreement, which stipulated employees were entitled to proper investigation of complaints. CUPE also claimed he was unjustly transferred to a different school and the failure to transfer him back to Emery Col- legiate violated a provision that allowed for a transfer back after a 45-day transfer period. Arbitrator John Stout agreed with CUPE that the TDSB didn't conduct an adequate investiga- tion into Blackburn's complaint. Once the new allegations against Blackburn were made by the su- pervisors and anonymous em- ployees, the investigator became distracted by them, said Stout. The arbitrator noted that if the al- legations were true, they should be addressed. However, Black- burn wasn't notified of them or given a chance to respond to them. Following the allegations, the investigator failed to talk to the subjects of Blackburn's com- plaints or any other witnesses re- garding the specific events about which Blackburn initially com- plained, denying Blackburn a fair opportunity to refute the allega- tions against him or have his com- plaints investigated, said Stout. Stout referred to previous la- bour arbitrations that established the "basic minimum procedural fairness" for workplace investiga- tions. This included timeliness, a qualified investigator, opportuni- ty for complainants to be involved in the process, a full statement of defence by the respondents, and an investigation carried out in good faith and a balanced manner, free from arbitrariness or discrim- ination. Stout found Blackburn did not receive a fair and impartial inves- tigation as required under the col- lective agreement. He ordered the TDSB to conduct another inves- tigation with a new independent investigator to properly investi- gate Blackburn's complaints of discrimination and harassment as well as the allegations raised by the supervisors and witnesses. "(Blackburn's) complaint was barely investigated and the al- legations against (him) were not put to him in a fair manner," said Stout. "(Blackburn) is entitled to know the details of the allegations against him, including the names of those who accuse him of bad behaviour." However, Stout had no issue with Blackburn's transfer to an- other school, finding that the TDSB had the obligation as an employer to provide a safe work environment for all employees and had the right to take "what- ever administrative action they deem necessary" to ensure such an environment. He also noted Blackburn reported not experi- encing any difficulties at his new school, making a transfer back un- necessary, at least until a proper investigation was completed. "It must be acknowledged that all employees should feel free to file a complaint and/or provide a statement during an investigation without fear of reprisal from any- one," said Stout. "So long as an employee acts in good faith, based on an honest be- lief and without malice, then they will be protected." For more information see: • Toronto District School Board and CUPE, Local 4400 (Black- burn), Re, 2016 CarswellOnt 9616 (Ont. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Arbitrator pg. 1 Union claimed violation of agreement, unjust transfer Photo: Martin Haas (Shutterstock) An arbitrator found a school caretaker in Toronto was not given a fair and impartial investigation as required under the collective agreement.

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