Arbitrator orders investigation do-over

Says investigator distracted by allegations during first investigation at Toronto school

An Ontario company must start over again after it failed to properly investigate a worker’s harassment and discrimination complaints, an arbitrator has ruled.
Mitch Blackburn was a caretaker for the Toronto District School Board (TDSB), hired in 2009. On Jan. 12, 2015, he was assigned to a school called Emery Collegiate.
A few months later, in the spring of 2015, the TDSB began receiving complaints about Blackburn’s work performance, along with reports of him arriving late to work and not wearing his uniform. By September, things worsened to the point where the TDSB had to give Blackburn a verbal warning for lateness, failure to follow procedure when absent from work and failing to provide a doctor’s note to support an absence.
On Sept. 15, a few days after the verbal warning, Blackburn — who is a person of colour — filed a complaint alleging discrimination and harassment based on his race. He indicated that his immediate supervisor — who is also a person of colour — and three other supervisors perpetrated the harassment.
Blackburn claimed the verbal warning was discriminatory because colleagues who were white were also late and didn’t always wear their uniforms weren’t also disciplined. He also said the TDSB monitored his performance more closely than others and other white employees had similar performance issues, resulting in him being held to unreasonable performance standards while the school was short-staffed.
Blackburn also said the head caretaker had failed to advise him about a shift leader training course and refused to rotate the acting shift leader position so Blackburn could give it a try. In addition, he accused the head caretaker of taking down notices Blackburn had posted in the caretakers’ office while Blackburn was warned for removing outdated work orders.
The TDSB hired an independent investigator to look into Blackburn’s complaint. However, during the investigation, the supervisors and two anonymous employees made serious allegations against Blackburn’s behaviour in the workplace. These allegations weren’t discussed with Blackburn before he was transferred to another school and Blackburn claimed the transfer was discriminatory as well.
The independent investigator began to focus on the new allegations and didn’t interview the head caretaker about Blackburn’s lateness and didn’t ask the supervisors if they scrutinized Blackburn more than other caretakers. She also didn’t look into a claim by Blackburn that the head caretaker fabricated an earlier complaint by the school’s daycare that he removed a chair or whether the TDSB investigated that complaint.
Despite not checking into these issues, the investigator determined there was no discrimination against Blackburn and his transfer was appropriate. She also recommended he be moved under TDSB policy, though the policy indicated a respondent, not a complainant, could be transferred.
Blackburn’s union, the Canadian Union of Public Employees (CUPE), filed a grievance on his behalf accusing the TDSB of violating the collective agreement, which stipulated employees were entitled to proper investigation of complaints. CUPE also claimed he was unjustly transferred to a different school and the failure to transfer him back to Emery Collegiate violated a provision that allowed for a transfer back after a 45-day transfer period.
Arbitrator John Stout agreed with CUPE that the TDSB didn’t conduct an adequate investigation into Blackburn’s complaint. Once the new allegations against Blackburn were made by the supervisors and anonymous employees, the investigator became distracted by them, said Stout. The arbitrator noted that if the allegations were true, they should be addressed. However, Blackburn wasn’t notified of them or given a chance to respond to them.
Following the allegations, the investigator failed to talk to the subjects of Blackburn’s complaints or any other witnesses regarding the specific events about which Blackburn initially complained, denying Blackburn a fair opportunity to refute the allegations against him or have his complaints investigated, said Stout.
Stout referred to previous labour arbitrations that established the “basic minimum procedural fairness” for workplace investigations. This included timeliness, a qualified investigator, opportunity for complainants to be involved in the process, a full statement of defence by the respondents, and an investigation carried out in good faith and a balanced manner, free from arbitrariness or discrimination.
Stout found Blackburn did not receive a fair and impartial investigation as required under the collective agreement. He ordered the TDSB to conduct another investigation with a new independent investigator to properly investigate Blackburn’s complaints of discrimination and harassment as well as the allegations raised by the supervisors and witnesses.
“(Blackburn’s) complaint was barely investigated and the allegations against (him) were not put to him in a fair manner,” said Stout. “(Blackburn) is entitled to know the details of the allegations against him, including the names of those who accuse him of bad behaviour.”
However, Stout had no issue with Blackburn’s transfer to another school, finding that the TDSB had the obligation as an employer to provide a safe work environment for all employees and had the right to take “whatever administrative action they deem necessary” to ensure such an environment. He also noted Blackburn reported not experiencing any difficulties at his new school, making a transfer back unnecessary, at least until a proper investigation was completed.
“It must be acknowledged that all employees should feel free to file a complaint and/or provide a statement during an investigation without fear of reprisal from anyone,” said Stout.
 “So long as an employee acts in good faith, based on an honest belief and without malice, then they will be protected.”
For more information see:
• Toronto District School Board and CUPE, Local 4400 (Blackburn), Re, 2016 CarswellOnt 9616 (Ont. Arb.).

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