One of the most important new areas of labour relations is the increasing protection of an employee’s right to work in an atmosphere free of harassment and intimidation.
What happens, though, if those rights conflict with other important workplace rights and duties?
A recent decision of the Nova Scotia Supreme Court (Canada Post vs CUPW and Arbitrator Outhouse 2008 NSSC 300) sheds some new light on the balance between the Employer’s obligation to maintain a workplace free of violence and harassment and the Union’s right to represent members in the way it sees fit.
The decision, a judicial review of Arbitrator Outhouse’s 2007 award, looked at an unusual case that originated in an incident at the Canada Post worksite in Moncton in December 2005. There had been several complaints filed against a supervisor, Mr Sevigny, by women at Canada Post. Although Mr Sevigny had been exonerated after an internal investigation, he nonetheless took about 9 months off, returning to work in the fall of 2005. The Union was not convinced that Mr Sevigny was innocent and a full-time grievance officer, Mr Buckland, confronted Mr Sevigny in the Moncton plant before both supervisors and employees. According to the arbitrator he engaged in a “planned and deliberate...prolonged and abusive tirade” against Mr Sevigny. He did not engage in any physical violence.
Canada Post subsequently banned Mr Buckland from all company facilities indefinitely and demanded medical clearance for emotional and anger control issues for him to return to his position. The Union grieved this matter as discipline and as interference in the Union’s rights as sole bargaining agent. One of the pillars of free collective bargaining is that workers and their unions choose their own representatives. By banning a full-time Union Rep from all premises indefinitely, the Employer caused “real and significant” interference in this right according to the arbitrator.
But, the arbitrator’s award disagreed with the Union’s characterization of the punishment as disciplinary. He held that the action was taken in a good faith attempt to protect the rights of other Canada Post employees to a “safe and harassment free work environment.” Nonetheless, he found that the interference with the Union’s rights to administer its affairs and represent its members was problematic. He reduced the ban to 18 months for all facilities except Moncton where a 3-year ban was implemented. Significantly, he found that the grievor posed no threat to other employees. Because of this, he deleted the requirement for the grievor to have a medical certificate for return to work. The Court’s ruling on the judicial review upheld the arbitrator’s award as reasonable and awarded costs to the Union.
This was a difficult case involving the balancing of very different but important rights. While all employees have a right to a harassment-free workplace, that right cannot be used by management to silence and permanently exclude a Union grievance officer. The arbitrator acknowledged the importance of the harassment issue by upholding a ban of up to 3 years. That was a significant signal to the Union that there are some limits on the behaviour of its officials.
However, by upholding the fundamental premise that the Union has the right to control its own internal structures and represent employees in the way it chooses, the arbitrator has upheld a fundamental component of free collective bargaining.
What do you think? Did the Court/arbitrator do the right thing?
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