Faculty, union wanted health and safety investigation but there was no risk of physical violence: Arbitrator
A British Columbia college lived up to its duty to provide a safe workplace when it addressed a student’s aggressive behaviour towards instructors through its student conduct procedure rather than a health and safety investigation, an arbitrator has ruled.
A number of faculty members at the College of New Caledonia in Prince George, B.C., developed concerns over a specific student in the 2013-2014 academic year. The concerns related to the student’s attitude and harassing behaviour towards female faculty members — particularly those teaching women’s studies. The student was disruptive and disrespectful in class and acted imposingly towards them outside of the classroom. He made it clear that he saw some of his instructors as radical feminists and often demonstrated escalating anger and frustration towards them. He sometimes invaded instructors’ personal space during discussions and openly challenged them. In addition, he sometimes said his women’s studies class was “driving him crazy” and he left or missed classes, explaining he needed to cool off.
The student was of First Nations background and was deeply religious, being involved in a ministry. He had firm beliefs, which made it difficult for him to discuss topics such as gender issues, sexuality, and religion. He was never physical, but his disagreements became more angry and forceful over time. On one occasion, he yelled at another student in class before apologizing, and also yelled questions and instructors.
In March 2014, several faculty members learned of each other’s experiences with the student and found their issues weren’t isolated and showed a pattern. They met with the dean of university studies and their union, explaining in a written incident report that they had concerns that the student’s behaviour could potentially turn violent — the student was a large and intimidating man.
One instructor in particular recounted that the student had made a class presentation that included information about abuse in his family, his anger, and suicidal feelings. The student became increasingly agitated after this and the instructor was worried about him being in her class.
College responded to staff concerns
The dean contacted the head of security following the meeting and advised him to monitor the instructor’s class and “keep an eye out” for the student. He also contacted a counsellor in student services to see if any complaints about the student had been filed as well as the student, who declined to speak about the issues he had with his instructors.
The dean also sent the incident report to the community and student services department. They determined there was no immediate threat of violence, so the student was required to enter into a behavioural contract, outlining required behaviours in the classroom and at the college. They also determined most of the concerns in the incident report were related to personal misconduct under the student conduct policy, rather than health and safety provisions.
The college had provisions in its collective agreement protecting employees from harassment. It referred to B.C’s health and safety legislation and established procedures for investigating health and safety risks from harassment and keeping employees informed of its findings.
The faculty members and the union raised the collective agreement provisions and the college’s occupational health and safety committee, requesting the incident report remain open for any further complaints about the student.
In late March, one of the instructors emailed the dean to say the student continued to be disruptive in her class and security wasn’t visible. She asked him to withdraw the student from her class because his behaviour was escalating and she didn’t think anyone should be subjected to it any further. The dean replied that security patrols had increased and there was an emergency phone outside her classroom if it was needed.
The student services department proceeded as it would with a student who was disruptive but not threatening violence, as it didn’t have evidence that the student had actually made any threats. A meeting with the student was planned where he would be asked to agree to a behavioural contract.
Another instructor emailed the dean to say she hadn’t seen any added security and she felt unsafe on campus. The dean replied with the same information he had given the first instructor.
On April 1, the student signed a letter indicating that if he didn’t comply with the behavioural contract, further steps would be taken, possibly including suspension. The next day, the community and student services department informed the dean and the faculty members on what transpired at the meeting.
Student conduct versus health and safety approach
On April 8, the union filed a grievance on behalf of the faculty members, arguing that the college didn’t properly investigate their complaint and failed to provide a safe workplace as required under the collective agreement and provincial health and safety legislation. It argued that treating the matter as a student conduct issue and not a workplace safety issue, the college contributed to an unsafe workplace.
The arbitrator noted that the collective agreement showed both the college and the union were interested in health and safety in the workplace, which wasn’t limited to employer/employee interactions — the agreement discussed “providing a working and learning environment that allows for a full and free participation of all members in the institutional community.” Out of necessity, this included interactions with students, said the arbitrator.
The arbitrator found there was enough disruption and anger in the student’s behaviour to make the faculty members concerned and their complaints were legitimate. However, there was no indication the college didn’t take their concerns seriously. The college immediately contacted security and passed along the incident report to the community and student services department, which then looked into the situation and met with the student. The student was then required to sign a behavioural contract and warned of the consequences of continuing to behave the way he had been.
The arbitrator also found that the incident report didn’t indicate any actual threats or danger of physical violence, and therefore proceeded as it normally did through the student services department. The analysis of the situation was done by experienced personnel and the college’s actions weren’t unreasonable or arbitrary, said the arbitrator.
Though the collective agreement noted a commitment to a harassment-free workplace, it didn’t contain specific procedures on how this should be achieved — other than dealing with harassment based on discrimination. Though the union felt the matter should have been treated as a health and safety issue, there was nothing preventing the college from approaching it as a student conduct issue, said the arbitrator.
The arbitrator also noted the collective agreement gave employees the right to remove themselves from situations where there is a perceived threat of violence. None of the faculty members did so, nor did they refuse work under health and safety legislation. This supported the college’s finding that there wasn’t a threat of violence — the student had no history of violence — or a significant safety risk, said the arbitrator.
The arbitrator found the college could have provided more information to the faculty members regarding security measures and the progress of the investigation, but it fulfilled its duty to investigate and ensure a safe workplace.
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