Worker terminated after threatening alleged harasser

Temporary workers not protected from harassment, termination

Michael Starkes asked his employer, the Cambrian College of Applied Arts and Technology, to formally investigate one of his colleagues for alleged harassment.

But during the investigation, Starkes made threats of violence against the same colleague.

In the end, the Sudbury, Ont.-based college terminated Starkes following the threats, and he was paid one week’s pay in lieu of notice.

Following Starkes’ dismissal, he was informed that, upon investigation, the employer had found no basis for his claims of harassment against his colleague.

Grievance filed

Starkes filed a grievance against the employer, alleging his colleague had "covertly bullied, psychologically harassed and unjustly accused" him.

Starkes also charged the employer was in violation of the collective agreement as well as health and safety legislation by enabling workplace harassment, discrimination and bullying, as well as reprisal for his filing complaints against such alleged harassment.

Starkes’ union — the Ontario Public Service Employees Union — argued Starkes was dismissed without just cause, without justification and in an arbitrary and discriminatory manner.

The union argued that even as a temporary employee, Starkes was entitled to substantive protection from harassment under Ontario's Occupational Health and Safety Act.

The union further charged that the employer was obliged to exercise its management powers reasonably and in good faith with all of its employees, whether they were full-time or temporary.

Employer opposed

The employer, however, argued arbitrator Michael Bendel had no jurisdiction because at the time of his termination, Starkes was employed as a temporary placement co-op co-ordinator.

As a temporary employee, the terms and conditions of Starkes’ employment are dealt with in an appendix of the parties’ collective agreement.

As a result, none of the provisions of the collective agreement relating to harassment or termination of employment apply.

Arbitrator agrees

Bendel agreed with the employer that as a temporary employee, Starkes was only entitled to the rights described in the relevant appendix.

None of those rights, Bendel found, offered Starkes any protection from termination of employment or from harassment.

Concerning the Occupational Health and Safety Act, Bendel agreed that section 50 of the act, which prohibits an employer from taking reprisals against an employee for exercising his rights under the legislation, could be considered within the ambit of the grievance.

As a result, Bendel concluded that he did have jurisdiction over the allegation that the grievor’s employment was terminated as a reprisal for having complained about workplace harassments.

None of the other allegations, however, were deemed to be within Bendel's jurisdiction.

As a result, the hearing was scheduled to be resumed at a later date.

Reference: Cambrian College of Applied Arts and Technology and the Ontario Public Service Employees Union. Michael Bendel — arbitrator. Timothy Liznick for the employer, Jane Letton for the union. June 3, 2015.

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