Canadian Employment Law Today - sample

Canadian HR Reporter, a Thomson Reuters business 2018 Canadian Employment Law Today | 7 More Cases discussions were difficult. e professor took the view that the appeal process was broken and his input wasn't valued. ese feelings continued when the professor gave a student a zero on an exam after being caught with a cellphone, which was considered cheating. e student appealed and the ap- peal was allowed. In 2014, the professor was going through some personal problems related to fam- ily health and marriage issues and asked for time off from a doctor of business adminis- tration (DBA) program he had been taking since before he was hired at Sheridan. e associate dean tried to convince the profes- sor not to take time off, but the professor claimed he said he was only hired because of his enrolment in the program and if he didn't complete it he might not fit in Sheridan's long-term plans -- he was still on probation. e associate dean eventually offered to as- sign him courses at only one campus instead of the two he was currently teaching at, and the professor accepted. However, he was up- set after the meeting and felt the associate dean refused to appreciate his personal situ- ation, leaving the professor feeling harassed and bullied. In June 2014, both the professor and the associate dean were at a meeting with 20 to 30 people to discuss a grade sync program. e professor had several questions about the program, and at one point the associate dean had heard enough and, according to the professor, told him to "get it through your thick skull." e associate dean denied saying it and the professor supplied no witnesses to back him up. e professor applied for reimbursement of his DBA program tuition in 2015 and the associate dean supported the application initially. However, after accepting the appli- cation, the committee discovered the DBA program wasn't in accounting and therefore didn't meet the necessary criteria for reim- bursement. e professor cited this as an example of harassment, but the associate dean claimed he had nothing to do with the decision. e professor complained of other in- stances where the associate dean and the college didn't support him. In 2015, when the associate dean asked to have another faculty member who was pursuing an MBA sit in on his class, the professor refused, feel- ing it showed a lack of confidence in teaching ability. e professor also wanted the college to force a publisher to follow through with providing lecture videos for his course, but the associate dean refused because he didn't want to create conflict with a publisher with which the college had an ongoing relation- ship. On another occasion, the professor was assigned as a course lead but wasn't assigned to teach the course as the teaching assign- ments for the course had already been deter- mined. e associate dean thought the pro- fessor wanted the course lead assignment, but removed it when the professor filed a formal complaint. e professor then felt the removal of the assignment was a retaliation for the complaint. e professor's displeasure reached the point where he wouldn't meet with the as- sociate dean unless two union stewards were with him. e associate dean refused this arrangement, so the professor requested that all communication between them be by email only. e associate dean refused again, saying it was necessary to meet to discuss workplace matters. According to the associ- ate dean, he tried to compliment the profes- sor on a presentation at a meeting in May 2016, but the professor didn't respond. Soon after, the associate dean sent the professor an email about a course outline, but the profes- sor was on vacation. e associate dean said he didn't know the professor was on vacation but simply wanted to know the status of the outline since it was supposed to have been completed before the professor went on va- cation. e professor filed four grievances related to these incidents claiming improper treat- ment, harassment, and bullying contrary to the collective agreement. e arbitrator found that most of the in- cidents the professor described were situa- tions where the associate dean "expressed reasonable criticism" or "legitimate dis- agreement" with the professor. Whether the criticism and disagreement was right, it didn't matter – it was the associate dean's managerial right to do so. "e collective agreement does not en- title the employee to a manager who always agrees with him, even if the employee is convinced that his position is the more valid one," said the arbitrator. e arbitrator also found the occasion when the professor's course lead was re- moved wasn't retaliation for his complaint, but rather because the professor expressed his opinion that he shouldn't do it without teaching the course. Since the associate dean couldn't assign him to teach the course, it was reasonable to remove the professor from the assignment, said the arbitrator. In addition, the arbitrator found no evi- dence of harassment in asking about an overdue assignment and the professor wasn't asked to do work on his vacation. e arbitrator also accepted that the associate dean had nothing to do with the denial of tu- ition reimbursement. As for the comment "get it through your thick skull," the arbitrator agreed that it would be "derisory, berating and belittling," as well as "unwarranted" – specifically pro- hibited by the collective agreement's harass- ment clause. However, despite the fact there were more than 20 people at the meeting where the professor alleged the comment was made, he didn't present any witnesses to corroborate his story. As a result, the ar- bitrator had no evidence the comment was made. ere was also no evidence that the associate dean made the "rodeo" comment, and such a comment made in frustration may not violate the collective agreement if it's not "reflective of the general tone of communication between" them, said the arbitrator. Finding no evidence of harassment or bul- lying, the arbitrator dismissed the profes- sor's grievances. See OPSEU and Sheridan College (Aggarwal), Re, 2018 CarswellOnt 3702 (Ont. Arb.). Professor wasn't asked to work on vacation « from WORKPLACE on page 1 other employees were generally provided with adequate safety training, 4-D failed to train them on what to do in the particular situation of radio failure. As a result, Tymko could not be held responsible for the inci- dent or found to have had "a neglectful or wilful disregard of 4-D Warner's safety stan- dards and procedures," said the court. e court also found that 4-D didn't im- mediately investigate the situation despite being advised of it, so it couldn't establish if the radio was actually working or not. e fact the pulp mill hardwired a radio into the trackmobile shortly thereafter made it likely there was in fact a problem, said the court. e court found 4-D didn't have just cause to dismiss Tymko. 4-D was ordered to pay Tymko two months' salary and benefits for wrongful termination of his three years of service. For more information see: • Tymko v. 4-D Warner Enterprises Ltd., 2018 CarswellBC 547 (B.C. S.C.). Safety training didn't include radio failure contingencies « from WORKPLACE ACCIDENT on page 3

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