College Update
Arbitrator Considers Employer’s Liability for “Personal Harassment” in Article 4.6.2 of the Support Staff CBA
Date: July 26, 2017
In an award released June 28, 2017, George Brown College and OPSEU Local 557, Arbitrator Michael Bendel considered the question of the College’s financial liability for “personal harassment” under Article 4.4.2 of the Support Staff Collective Agreement. In this College Update, we discuss the award, which gives important insight into a College’s obligations and potential liability for personal harassment.
Background
The grievor had been employed by the College since 1990. In 2004, another employee was hired into the grievor’s department and worked with the grievor until 2008 when the colleague was promoted out of the bargaining unit and into a front-line managerial role in which she supervised the grievor.
The grievor filed grievances in February, 2013, and October, 2014, alleging that she had been harassed and bullied through a pattern of conduct engaged in by the manager which amounted to “personal harassment.” This conduct dated back to the time when the grievor and manager were colleagues in the bargaining unit and continued to the time of the grievances.
Unrelated to her grievances, the grievor was absent from work on sick leave from mid-October 2014 until late-March 2015. During this sick leave, the manager about whom the grievances had been filed resigned from the College to take up other employment. Other than filing the group grievance and the individual grievance, the grievor had never filed a complaint, as contemplated in Article 4.4.2, with the College about the manager. At arbitration, the grievor sought $50,000.00 in general and punitive damages for harassment and discrimination alleged to have been perpetrated upon the grievor by the manager.
What is the College’s Obligation under Article 4.4.2?
The College advanced several arguments in defence of the grievances. One of the arguments was that Article 4.4.2 set out a specific process whereby the College was obliged to investigate complaints of bullying and/or harassment. In the face of a complaint under the article, a College could be liable if it failed to investigate or remediate. However, the provision does not create any liability in the College for the personal harassment suffered by an employee. Arbitrator Bendel accepted this argument.
In considering the purpose of Article 4.4.2, the Arbitrator wrote:
… the main purpose of this provision is to express the parties’ shared commitment to eliminating workplace harassment, and to provide for the investigation of complaints by employees who claim to have suffered harassment or bullying at the workplace. Under this clause, it is clear that there could be liability on the employer if it failed to “make reasonable provisions to ensure that employees have the right to be free from bullying/psychological harassment as defined within this article” or if it failed to cooperate with the union “to the fullest extent possible to ensure the workplace is free from bullying/psychological harassment”. There could possibly be liability if it failed to establish or comply with the complaint procedure provided for in the agreement. …
… the grievor’s principal argument seems to be that Article 4.4.2 creates a further obligation for the employer, this one implied, namely to pay financial compensation to employees for the harassment or bullying they suffer at the workplace. …
… There is clearly no explicit obligation in the employer to launch an investigation where no complaint has been formulated. I am also satisfied that there is no implied obligation to do so. The collective agreement envisages a complaint-driven investigation process, and I can see no possible justification for transforming the nature of the process by imposing an obligation on the employer to launch an investigation in the absence of a complaint.
In all these circumstances, I am satisfied that, even if the grievor was harassed by [the manager] as she alleged, there has been no violation of the collective agreement by the employer and that there is no basis for granting her the remedy she seeks, namely financial compensation from the employer.
Arbitrator Bendel’s Analysis
In coming to this conclusion, the Arbitrator considered and distinguished several earlier decisions where employers had been held liable in damages for workplace harassment. The primary case relied on by the union, Re Toronto Transit Commission and Amalgamated Transit Union (2004), 170 L.A.C. (4th) 151 (Shime) was distinguished on three grounds:
- The collective agreement at the TTC was entirely silent with respect to bullying and harassment, leaving a void in which the arbitrator could imply obligations. In the case of the College’s collective agreement, there was a detailed provision dealing with the obligations of the workplace parties regarding bullying and harassment which left no room to imply different or additional obligations;
- The Occupational Health and Safety Act (OHSA) upon which Arbitrator Shime relied had been amended in 2009 to specifically deal with workplace harassment. The amended OSHA set out specific obligations of employers to develop policies on workplace harassment and to investigate complaints. The OSHA now further provides for potential fines for employers that do not comply with these obligations. It does not, however, contain “… any suggestion that employers are answerable to their employees for harassment to which they have been subject by fellow employees or by managers.” These amendments to the OSHA removed one of the central rationales relied upon by Arbitrator Shime in Re TTC; and
- The grievor in the TTC case had complained to “… the right people at the Commission and they took no steps to investigate.” In the College’s case, the grievor had not complained to anyone about her manager.
The union had also relied on Re Ontario (Ministry of Community Safety and Correctional Services) and Ontario Public Service Union (Groves) (2007), 2014 CarswellOnt 14467 (G.S.B. Mikus). Arbitrator Bendel found that case to be distinguishable on the basis that the grievor there had filed a complaint under the employer’s Workplace Discrimination and Harassment Prevention Policy. Damages were awarded in that case on the basis that the employer’s investigation had been inadequate. In the College’s case, no complaint had been made by the grievor so no complaint could be made respecting the adequacy of the College’s investigation.
Finally, the union had relied on Re Ontario (Ministry of Community Safety and Correctional Services) and Charlton (2007), 162 L.A.C. (4th) 71 (G.S.B. Carter) where $20,000 was awarded to a grievor for mental distress caused by harassment. Arbitrator Bendel distinguished the case on the basis that it involved harassment on the grounds of race contrary to the Human Rights Code rather than “personal harassment” on a non-enumerated ground as in the case before him. In Charlton, liability flowed under the Code and not strictly the collective agreement.
Conclusion
Arbitrator Bendel’s award is significant in respect of both the support and academic bargaining units. The provisions in Article 4.4.2 of the Support Staff Collective Agreement are very similar to those in Article 4.02 of the Academic Collective Agreement such that Mr. Bendel’s analysis should be equally persuasive under both agreements. The decision makes clear that a College’s liability for personal harassment flows not from the acts of the harassing employee but rather the College’s response to a complaint about that conduct. On the analysis in this case, a thorough and fair investigation into a complaint joined with a prompt and reasonable employer response to findings of personal harassment may well insulate the employer from liability for the underlying improper conduct. Similarly, flaws in the investigation and the response may expose a College to liability for the consequences of its failures.
Should you have any questions regarding this decision or its impact, please contact any member of the College Sector practice group.
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