Harassment grievance can’t demand discipline or dismissal: Arbitrator

Union demanded termination of harasser as remedy for harassment

The decision to discipline or dismiss an Ontario supervisor rests with the employer, not as a remedy to a harassment grievance, an arbitrator has ruled.

The collective agreement between the Toronto Community Housing Corporation (TCHC) and its union confirmed that TCHC had the exclusive right to discipline employees and manage its operations.

An employee of TCHC filed two grievances against her supervisor claiming the supervisor harassed her multiple times from 2008 to 2013. As part of the grievances, the union demanded that TCHC discipline or terminate the supervisor’s employment. TCHC filed a preliminary motion, arguing that regardless of the outcome of the grievances, the arbitrator had no jurisdiction under the collective agreement to order it to discipline or terminate the supervisor.

TCHC further argued that while the arbitrator could order that the supervisor must stay away from the employee complaining of harassment, only TCHC had the right to dictate the employment relationship and deal with the supervisor in the way it felt best.

The supervisor himself argued that termination of his employment required “full consideration of all the reasonable cause factors” and simply ordering TCHC to do so without that consideration was illegal. In addition, the supervisor was not a member of the bargaining unit and therefore his employment relationship was not subject to the collective agreement.

The arbitrator noted that the Supreme Court of Canada had confirmed “a broad jurisdiction on arbitrators to resolve the essential nature of a dispute arising from a collective agreement.” However, the issue of discipline or termination of non-bargaining unit employees was still up for debate, said the arbitrator.

The arbitrator found that while employers had the right to exercise management rights, it was open to arbitrators to review that exercise of management rights and they had the authority to intervene if an employer was acting “in a manner that defeats specific collective agreement rights.”

Looking at the case precedents, the arbitrator found “while remedies for harassment grievances have been granted by arbitrators for many years, there is not a single decision where an order requiring an employer to discipline or terminate an employee has ever been issued.” This was because a rational connection between the remedy and the breach of the collective agreement must exist and there has never been “a rational connection between the safety of the workplace and the employer’s legal relationship with the offending employee, as opposed to the offending employee’s involvement and conduct while in the workplace,” said the arbitrator.

For there to be a rational connection between ensuring the harassed employee’s safety and terminating the supervisor, “it would have to be determined that a safe workplace was dependent on actions that went beyond the workplace, extending to how the employer managed its relationship with parties outside the collective bargaining relationship and outside the collective agreement. I cannot imagine on what facts that could possibly be established,” said the arbitrator.

The arbitrator disagreed with the supervisor’s assertion that an order to discipline or terminate him would be illegal, as the TCHC had the right to terminate him with or without cause with enough reasonable notice or pay in lieu, if necessary.

The arbitrator also found there were no allegations that the harassment had continued in the two years following the filing of the grievances, so the union could not establish that “a harassment-free workplace cannot be achieved without the remedy of discipline or termination of (the supervisor).”

The arbitrator allowed TCHC’s preliminary motion that there was no basis for a remedial order to discipline or terminate the supervisor’s employment. See Toronto Community Housing Corp. and CUPE, Local 79 (Zhang), Re, 2015 CarswellOnt 10237 (Ont. Arb.).

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