Alleged Harasser May Attend Grievance Proceedings

Claiming his reputation was at stake, a bakery supervisor applied to attend grievance proceedings in order to hear accusations against him related to allegations of workplace harassment and the union’s charge that the employer was failing to provide a “healthy and safe workplace free of abuse and harassment.”

The union opposed J.G.’s attendance at the hearing.

Before the Arbitrator, the union argued that J.G.’s presence at the hearings could have a chilling effect on union witnesses. And, if J.G. were permitted to attend, the union said, then the proceedings would have to be opened up to the other employees who also participated in the alleged harassment.

While acknowledging the principles laid out in similar cases that affirmed the right of accused harassers to attend hearings, J.G.’s interests in the proceedings in question did not rise to the level necessary to grant him standing according to the standards identified in the case law, the union said.

Significant interest in outcome

There are two main reasons for allowing a person other than the grievor to attend hearings. The first reason is to acknowledge an employee’s significant personal interest in the outcome; the second reason is to recognize cases where there is potential for a significant divergence between employer and employee interests.

Neither consideration applied in this case, the union said. J.G. did have an interest in the outcome but it did not rise to the level of seriousness referenced in the other cases, which dealt with sexual and racial harassment and garnered media attention. The stakes were not that high, the union said, noting that it was seeking neither discipline nor transfer for J.G. — it was only seeking to remedy the problem. Moreover, J.G. was not the sole focus of the union case, other alleged harassers were also involved, the union said.

Considerations with respect to the need to recognize the potential for divergent interests also did not apply here, the union said. It was reasonable to assume that J.G. and the employer would take the same line and that J.G.’s interests would be vigorously defended by the employer.

Case law favours applicant

The employer argued that the case law strongly favoured J.G.’s right to attend and that the allegations were indeed serious enough. Even if unproven, accusations of harassment could attract stigma and taint J.G.’s reputation. While on the surface the interests of J.G. and the employer were aligned, there was always the potential for elements to arise during the course of the hearing that could cause those interests to diverge, the employer said. Concerns about any potential chilling affect on witnesses associated with J.G.’s presence at the hearings could be addressed through hearing protocols and seating arrangements, the employer said.

The Arbitrator ruled that J.G. should be permitted to attend the hearings as an observer.

While the arbitration process is generally confined to the parties of the particular collective agreement, the notion that only signatories to the agreement are entitled to participate in hearings is not sacrosanct, the Arbitrator said.

Exceptions in law and practice have been recognized and are summarized by Arbitrator Lynk in City of London, the Arbitrator said. In particular, the third-party applicant must be able to demonstrate an important stake in the outcome. The interest to the third-party applicant may involve the possibility of an adverse remedy against him or her; the potential loss of a significant contractual benefit, right or status; or a threat to reputation or privacy. While conflict or divergence of interests between the third-party applicant and one or the other of the parties with standing are a consideration, the reasonable potential for divergent or conflicting interests is the standard rather than a demonstrable, actual conflict or divergence. With respect to applications for third-party standing, arbitrators may prescribe boundaries for participation with a view to retaining control over the proceedings in order to avoid abuses of process and to ensure a fair hearing to the industrial parties.

J.G.’s request satisfied the key requirements, the Arbitrator said.

Witness concerns can be addressed

The question of divergent interests turned on the potential for divergent interests rather than the more onerous standard of actual conflict or divergence, the Arbitrator said. Union concerns about the potential chilling effect of J.G. on witnesses could be addressed through physical arrangements in the hearing room, he added.

The accusations against J.G. were serious and could conceivably have implications for his career, even if the union was not seeking any sanction against him, the Arbitrator said.

“Workplace harassment of any kind, whether it be sexual, racial, or non-sexual bullying and intimidation, as in the current case, is subject to condemnation in practice and increasingly in law. There is now statutory protection against bullying and harassment in several provinces, demonstrating the seriousness with which society views such conduct. While I accept that some forms of harassment may be seen as more serious than other kinds, there is no doubt that bullying and intimidation are sufficiently serious charges to warrant the kind of standing that J.G. seeks.”

Reference: Canada Safeway Limited and United Food and Commercial Workers Union, Local 401. Allen Ponak — Sole Arbitrator. Kevin Tamblyn for the Union and Damon Bailey for the Employer. July 4, 2010. 8 pp.

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