Canadian Employment Law Today

February 1, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2017 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was Johnson a victim of harassment and discrimination? OR Was Johnson too sensitive and the city met its duty to keep its workplace free of harassment and discrimination? Was Johnson too sensitive and the city met its duty to keep its workplace free of harassment and discrimination? City worker feels targeted by employer's moves THIS INSTALMENT of You Make the Call features a municipal worker who com- plained of racial discrimination and harass- ment at work. Phillip Johnson was born in Trinidad and came to Canada in 1967. He became em- ployed as a part-time recreation worker for the City of Toronto in 2001. In February 2011, Johnson picked up a bottle of what he thought was glass cleaner, but the bottle was broken and it contained bleach. e bleach splashed onto his clothes and just missed his eyes. He fi led an inci- dent report, saying three custodians about whom he had complained had harassed him before because of his race did it, but the matter wasn't pursued by the city. A short time later, the city moved the custodians to diff erent locations and wage harmonization was implemented. John- son's hours and rate of pay were reduced as the city determined many employees were being overpaid and not according to their wage code. Johnson felt the reductions were retaliation for his discrimination and harassment allegations. In addition, he had applied for other positions and was denied, which he also felt was retaliation. In September 2012, Johnson requested bereavement leave to attend his aunt's funeral in Chicago, but the request was denied because the collective agreement didn't cover paid bereavement leave for aunts. His supervisor also called him a dis- gruntled employee when he failed to make suffi cient eff orts to take fi rst aid training. A month later, a supervisor saw Johnson in uniform talking to a youth at the centre's front desk, telling the youth to do the right thing and stay in school. e supervisor told him that staff don't typically counsel youth while on duty if they weren't a social worker or counsellor. Soon after, the super- visor emailed him to remind him he wasn't supposed to off er "life counselling or advice while wearing a city uniform" as it could give the wrong impression to the public. Soon after, Johnson learned that one of the custodians about whom he had complained about was going to be transferred back to the recreation centre where he worked. Johnson went on an unpaid leave of absence and didn't return. Johnson's union fi led a complaint claim- ing the city failed to provide a workplace free of harassment and discrimination, and intimidation. IF YOU SAID Johnson was too sensi- tive and the city did enough to maintain a workplace free of harassment and discrimi- nation, you're right. e arbitrator found there was no evidence the broken bleach bottle incident involved the custodians or that it was an attempt to harass or intimi- date Johnson. ere was also no evidence the reductions in pay and hours were relat- ed to Johnson's complaints, as it was a city initiative to harmonize wages that aff ected many employees, not just Johnson. e ar- bitrator found the reductions were made for business reasons and not intended to harass or discriminate Johnson, said the arbitrator. e arbitrator also found the reprimand for talking to the youth stemmed from city policy and the supervisor was acting "with- in the prerogatives of a manager." e de- nial of paid bereavement leave for Johnson's aunt's funeral was also in line with the col- lective agreement, which applied equally to all employees. Johnson was still permitted to take unpaid leave and if he felt wronged he could have grieved the decision at the time, said the arbitrator. e other instances also lacked evidence of discrimination and harassment, as a comment calling Johnson a disgruntled em- ployee wasn't uncalled for in the context of the situation and some of the jobs for which Johnson applied he wasn't qualifi ed for. e arbitrator determined Johnson was not the victim of harassment or discrimina- tion and dismissed the grievance. "I appreciate from the evidence of (John- son) that he believes that he has been ha- rassed and discriminated against in the workplace by management and co-workers and that the employer has not taken steps to maintain a harassment and discrimination- free workplace," said the arbitrator. "From my review however, and on an objective ba- sis, the evidence is insuffi cient to establish the allegations set forth in the grievance." For more information see: •Toronto (City) and CUPE, Local 79 (John- son), Re, 2016 CarswellOnt 20159 (Ont. Arb.).

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