You can’t add harassment ‘by clarification,’ arbitrator rules

An employee's harassment claim has been shut out of arbitration because it was not a clarification of the original grievance but a new and distinct claim that was never raised during the grievance process.  

Arbitrator Adam Letourneau issued the preliminary decision on April 13, 2026, finding that discrimination and harassment carry separate legal obligations, even when they fall under the same collective agreement article. 

The grievance was filed on behalf of an employee who alleged discrimination related to vacation scheduling and payout while on medical leave.  

Vacations and leaves of absence 

In her grievance, the employee stated that between Aug. 15, 2023, and Aug. 10, 2024, she "was unable to book vacations because of ongoing leaves of absences due to medical conditions." She also stated: "I have been informed that my supervisor will be scheduling vacation dates without my permission or consent." 

In February 2026, months after hearing dates had been set for June, the union sought to amend the grievance to add allegations of harassment. It also requested an additional six days of hearing time beyond the three days already scheduled. 

Both the original grievance and the proposed amendment fell under Article 6 of the collective agreement, titled "No Discrimination, Workplace Violence Or Harassment." That provision states that the employer, the union and employees "recognize a joint responsibility to provide respectful, secure, and supportive work environments for all individuals" and that if "workplace violence or harassment has occurred," the parties "shall take appropriate action to ensure it ceases." 

Employer objects to amended grievance 

The union argued that by grieving under Article 6, it had grieved all obligations within that article, and that naming harassment was simply a clarification.  

The employer objected, stating that harassment was never raised at any stage of the grievance procedure and that no evidence supported any suggestion it had been previously advanced. 

Letourneau found that although the provisions within Article 6 reflect a shared commitment to a respectful workplace, "they impose distinct and independent obligations."  

"I am not persuaded that a general reference to Article 6, without more, encompasses all forms of misconduct within that article." 

‘Distinct legal framework’ for harassment 

The arbitrator held that harassment "engages a distinct legal framework and requires a broader factual inquiry, typically involving patterns of conduct and workplace context rather than a discrete decision. It is not simply another way of characterizing the same conduct." 

He found the original grievance was "confined to a discrete allegation of discrimination relating to the scheduling and payout of vacation" with "no reference to harassment, no allegation of a pattern of conduct." On the failure to raise it earlier, Letourneau wrote: "The absence of any earlier reference is not merely a matter of imprecision. It is a failure to raise the issue." 

The amendment was denied as "an impermissible expansion of the grievance." The requests to extend and bifurcate the hearing were also denied. However, Letourneau noted: "Nothing in this decision precludes the union from advancing any properly constituted grievance arising from the same or related facts."  

The hearing on the original discrimination claim is to proceed as scheduled on June 22 to 24, 2026.