Grievance relied on violations of the Human Rights Code
The second time proved the charm for an apprentice in Ashcroft, B.C., who won her second discrimination grievance against her employer.
Meghan Henderson, an aspirant welder at I.G. Machine and Fibres filed her second grievance against the company, alleging she was further harassed and discriminated on the job.
The first time Henderson petitioned an arbitrator alongside the International Association of Machinists and Aerospace Workers (IAMAW) union, she and another female employee alleged discrimination and harassment. That grievance was heard and settled by arbitrator Gabriel Somjen, who ordered the employer and union to address its policies.
For the current case, the union claimed the settlement agreement had been breached as well as the Human Rights Code and clauses pertaining to discrimination and harassment in the collective agreement.
The incident in question occurred just days after the first grievance was settled, and, as per Somjen’s orders, Henderson’s supervisor asked all employees in a routine morning meeting how to better conduct a workplace to mitigate discrimination.
The union alleged — and the employer promptly denied — that the supervisor made comments regarding his emotional and physical hardship sustained as a result of the mediation process. Henderson believed these comments to be directed toward her, as she was the grievor, and felt "singled out."
She approached the human resources department, which assured her it would conduct an investigation. Following the internal investigation, and based on employee interviews, the company determined the incident in question could only be boiled down to a he said-she said argument.
The IAMAW alleged the initial investigation was flawed, as three employees (or would-be witnesses) were not part of the initial interrogation. Also, the supervisor’s actions further evidenced the overarching culture of harassment.
Conversely, the employer argued Somjen did not have jurisdiction to preside over the case as the union, for the second grievance, relied heavily on violations of the Human Rights Code and provisions that mentioned the code in the contract, not the specifics of the individual company’s employment policies.
However, precedent does exist for arbitrators loosely relying on employment standard-based grievances, Somjen said.
"It is now well established…that an arbitrator has jurisdiction to hear allegations that there were violations of employment-related statues such as the Human Rights Code, even if the collective agreement does not contain language prohibiting the alleged misconduct," he said.
Somjen also determined that, while the supervisor did in fact make the comments, he did so with sincere intent.
"(His) intent was not to hurt Henderson but rather he was expressing his own hurt feelings in a form and manner which were inappropriate…His comments were not merely foolish, they were harassing and retaliatory," the ruling reads.
Though IAMAW initially wanted $8,000 awarded in damages, Somjen determined $2,000 was more appropriate, as "all involved in these matters are sincerely trying to get past the problems that gave rise to these grievances in the first place."
Reference: I.G. Machine and Fibres and the International Association of Machinists and Aerospace Workers (IAMAW) Local 692. Gabriel Somjen — arbitrator. Carole Hoglund for the employer, Paul Pelletreau for the union. April 23, 2015.
