Canadian Labour Reporter

June 18, 2018

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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8 Canadian HR Reporter, a Thomson Reuters business 2018 June 18, 2018 ARBITRATION AWARDS The Board of Education of School District No. 69 (Qualicum) grieved the union's actions and argued the talks were intended to "promote and foster the profes- sional development of staff " and the benefits and pension talks vio- lated article 37.2 of the collective agreement, because they were not "directly related to the skills and qualifications necessary to the various job descriptions." But the union argued that it was a longstanding practice that had not been grieved before, and the employer should be estopped from denying the funds for the seminars until the next round of bargaining for the collective agreement. The agreement mandated that each employee contributed $7 per year, while the employer contrib- uted $21 per employee per year to a professional development fund. "The board and the union agree that professional-development activities covered by this article are intended to promote and fos- ter the professional development of staff," read article 37.2 of the collective agreement. From 2002, the union held six similar seminars on the pension plan, testified Troy Forster, CUPE, Local 3570 president, and they were not disputed by the district. As well, a 2012 seminar was held on the topic of joint early intervention services, which was a topic relating to benefits, said Forster. However, as early as 2010, the district expressed concerns dur- ing labour-management meetings that seminars "may not be job-re- lated," said JoAnne Shepherd, dir- ector of human resources. On Nov. 19, 2010, Bernice Han- nan, secretary treasurer, wrote a letter to Lisa Paine, union presi- dent clarifying the district's pos- ition. "This letter shall serve as notice that future seminars offered on professional development days must be directly related to the skills and qualifications necessary for the various job descriptions," read the letter. But on Nov. 8, 2011, during an- other labour-management meet- ing, CUPE agreed to "continue to attempt to present sessions that are directly related to the skills and qualifications necessary to the various job descriptions," ac- cording to the minutes. On April 12, 2016, the union said it was upset that the district had denied eight of the 15 sem- inars proposed. The district re- sponded that Chinese cooking and archery (two of those denied), for example, were not related to employee's jobs. In the grievance, the district asked for repayment of salaries for 62 employees who attended the October pension talks and for 149 employees who attended the Feb- ruary benefits talks. As well, the district asked for repayment of its employer contri- butions for both seminars. Arbitrator Marguerite Jackson (backed by fellow board members Alissa Perry and Ian McLean) up- held the grievance but it ordered only a portion of the employer's contributions be repaid by CUPE. "Seminars arranged by the union must precisely address topics that give the employees specific educa- tion, training or capability essential to the performance of their various jobs. If the seminars fail in this re- gard, the failure constitutes a vio- lation by the union of articles 37.2 and 37.3. Such is the case here with respect to the pension and benefits plans seminars offered in October 2016 and February 2017." The union's argument that the district didn't grieve the practice in the past was rejected. "The em- ployer did raise the issue of sem- inars that did not meet the Article 37.3 criteria in bargaining in April 2013," said Jackson. Reference: Board of Education of School District No. 69 (Qualicum) and Canadian Union of Public Employees, Local 3570. Marguerite Jackson — arbitrator. Ilan Burkes for the employer. Kirk Oates for the employee. April 20, 2018. 2018 CarswellBC 1318 Chinese cooking, archery not job-related courses: Employer < 'Professional development' pg. 1 him, 'Hey you're in my personal space.' I would back my chair up until it hit the wall and I would cross my legs and put my foot out to prevent him from getting any closer to me. I felt violated, un- comfortable, grossed out, fearful," said Wolbaum. After three months of what she felt was Naqvi's increasingly harassing behaviour, Wolbaum would eat her lunch inside her office, with the light off and the blind shut, to discourage Naqvi from visiting. Most of the discussions were of a personal nature, said Wolbaum. On one occasion, testified Wolbaum, Naqvi had his hands in his pants while talking to her. He then pulled out his hands and used her hand sanitizer to cleanse his hands. "I felt like maybe he was trying to sexually arouse himself while standing over me asking me out for lunch," said Wolbaum. Naqvi also began to talk about his own sex life and how he was not happy with his wife. When she was asked about her own sex life, Wolbaum told Naqvi she did not wish to discuss it with him. On July 25, 2016, Naqvi "made the comment to me that I smelled like urine and that I didn't shower," said Wolbaum. She then went to the lunchroom and began crying. Some other employees saw Wolbaum crying and they advised her to make a formal complaint to the acting supervisor, whothen es- calated the allegations to a harass- ment coordinator. Wolbaum later spoke to an in- vestigator hired to examine the allegations. On Sept. 30, 2016, Naqvi was suspended for 10 days without pay after a report was issued that found Naqvi did participate in ha- rassment of Wolbaum. "You did not believe your ac- tions constituted sexual harass- ment and denied the findings of the report. As such, you showed little acceptance of or remorse for your actions," read the letter of discipline. On Oct. 25, Naqvi and the SPFA grieved the decision and argued the punishment was too harsh for an employee with 33 years of experience and no previous disci- pline on his record. Arbitrator Anne Wallace dis- agreed and upheld the suspen- sion. "Wolbaum was quite emo- tional at times during the hearing and wept at various times. I ac- cept that tears can be a powerful tool for a good actor, but I believe Wolbaum's tears were genuine," said Wallace. Naqvi testified that much of Wolbaum's testimony was false and he did not sexually harass her, but "Wolbaum's story overall is more inherently plausible than Naqvi's," said Wallace. The union's argument that Wolbaum should have com- plained earlier if the harassment was so damaging was rejected by the arbitrator. "While someone else might have handled the situation with Naqvi differently, in all the cir- cumstances, it is understand- able that Wolbaum tolerated the behaviour for a long time before coming forward. I do believe Wolbaum was emotionally in- jured by Naqvi's behaviour." And Naqvi's performance while testifying was another factor in the decision, said Wallace. "His explanations for the allega- tions against him appeared to be carefully crafted and rehearsed. He sometimes repeated the same story about a particular incident almost verbatim as if he had mem- orized what he was going to say," said Wallace. "Naqvi did not give straightfor- ward answers to questions asked and was often evasive." Reference: Saskatchewan Polytechnic and Saskatchewan Polytechnic Faculty Association. Anne Wallace — arbitrator. Paul Clemens for the employer. Gordon Hamilton for the employee. March 26, 2018. 2018 CarswellSask 173 < Grieves suspension pg. 1

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