CANADIAN RAILWAY OFFICE OF ARBITRATION & DISPUTE RESOLUTION
CASE NO. 3465
Heard in Montreal, Tuesday, 11 January 2005
CANADIAN NATIONAL RAILWAY COMPANY
UNITED TRANSPORTATION UNION
Harassment and intimidation of Mr. P. Croteau, jointly and severally, by Company Officers Ms. K. Stewart and Mr. T. Cowieson, this in violation of CN's Human Rights Policy, the Canadian Human Rights Act, Privacy Act, the Canada Labour Code and the Canadian Charter of Rights and Freedoms.
UNION'S STATEMENT OF ISSUE:
The Union submits that beginning on or about September 2003, the Company (Ms. K. Stewart and Mr. T. Cowieson) did continually harass and intimidate Mr. Croteau and Mr. Croteau's family as a result of Mr. Croteau's personal illness and work related injuries.
The Union filed a grievance to the Company on September 28, 2004. The Company has not responded to the grievance. The Union submits the situation has not been resolved. The situation remains intolerable for Mr. Croteau and his family.
It is the Union's position that the Company, by way of its officers (Ms. K. Stewart and Mr. T. Cowieson) did jointly and severally violate CN's Human Rights Policy, the Canadian Human Rights Act, the Privacy Act, the Canada Labour Code and the Canadian Charter of Rights and Freedoms and implied rights with respect to the collective agreement 4.16.
The Union requests that the Company find that Ms. Stewart and Mr. Cowieson, jointly and severally, did improperly and illegally harass and intimidate Mr. Croteau and Mr. Croteau's family.
In finding a violation, the Union requests that the Company direct Ms. Stewart and Mr. Cowieson to cease and desist from harassing and intimidating Mr. Croteau and Mr. Croteau's family. That the Company provide a written apology to both Mr. Croteau and Mr. Croteau's family for such improper and illegal harassment and intimidation. In addition, to compensate Mr. Croteau all loss wages resulting from his absence from work due to such improper and illegal harassment and intimidation.
In addition, the Union submits that the actions of Ms. Stewart and Mr. Cowieson, jointly and severally, were extremely egregiousness. In consideration of this unacceptable behaviour the Union additionally requests that the Company provide Mr. Croteau and his family equitable compensation, as deemed appropriate in the circumstances, for such improper and illegal harassment and intimidation.
On December 6, 2004, the Company wrote the Union advising that the Company will be raising a preliminary objection regarding the arbitrability of the Union's grievance.
On December 6, 2004, the Company wrote CROA&DR (copied to the Union) advising that should the Union progress an ex parte statement of issue with respect to the Union's grievance it would have a preliminary objection regarding arbitrability. The reasons for the preliminary objection provided stated "Complaint vs. Grievance - No article in Agreement 4.16".
On December 7, 2004, the Union wrote the Company advising that it would be proceeding to file to arbitration by way of an ex parte statement of issue. The Union referenced the Company's intent to raise its preliminary objection. The Union advised the Company, inter alia, that it would request that the Arbitrator address all matters in dispute, including the substantive issue raised by the Union with respect to the grievance submitted.
The Union submits that all matters with respect to the Union's "Policy Grievance" are now properly before the Arbitrator for resolution.
FOR THE UNION:
There appeared on behalf of the Company:
- Counsel, Montreal
And on behalf of the Union:
- Counsel, Toronto
PRELIMINARY AWARD OF THE ARBITRATOR
The Company makes a preliminary objection that the grievance, which alleges harassment, is not arbitrable. It submits that the grievance form, as well as the ex parte statement of issue, are not in compliance with the requirements of the collective agreement and of the Memorandum of Agreement establishing this Office. Specifically, the Company submits that no article of the collective agreement is cited as having been violated. In these circumstances it submits that the grievance should be dismissed. The Union relies on recent decisions of the Supreme Court of Canada, as well as the provisions of the Canada Labour Code, to argue that the Arbitrator does have jurisdiction in these circumstances to deal with alleged violations of the Canadian Human Rights Act, the Privacy Act and the Canada Labour Code. It submits that the grievor was harassed, contrary to the Canadian Human Rights Act in his treatment at the hands of two supervisors by reason of his illness or injury, a status protected under the Act and in respect of which a board of arbitration has jurisdiction.
The facts surrounding the grievance are not in dispute. Mr. Croteau is employed as a yard helper in Sarnia, Ontario, having been hired in 1992 and having worked in various job classifications in more than one bargaining unit, including as trackman, labourer, operator, helper and brakeman in and out of a number of terminals.
On or about July 27, 2004 the grievor filed a seventeen page complaint alleging an extensive series of acts which he submits were harassment by two named supervisors during the period between September of 2003 and July 8, 2004. The complaint was filed through the Union's Legislative Board Chairperson, Mr. Glenn King under the procedures of the Human Rights Harassment Policy adopted by the Company in 2003. Having received responses from the two supervisors in August and September of 2004 the Company sought to schedule a meeting concerning the complaint, but was advised that Mr. King would not be available until October of 2004. In the interim, the instant grievance was filed by the Union on September 28, 2004.
It appears that the Company's Human Resources Manager, Ms. Suzanne Fusco, made extensive efforts to schedule the meeting to pursue the complaint under the Company's harassment policy procedures. An offer to meet Mr. King on several proposed dates in November received no response. When Ms. Fusco advised Mr. King of possible dates in December he answered that the grievor was off work due to illness and would not be available until further notice. In response Ms. Fusco indicated that the matter would be held in abeyance pending Mr. Croteau's availability to participate in the process. Having heard nothing further, the Company's Senior Manager of Human Resources, Mr. Terry Gallagher, communicated to Mr. King in the following terms by letter dated December 20, 2004:
It would appear that nothing has happened since that communication, and that the processing and possible resolution of the grievor's complaint under the Human Rights Harassment Policy is still pending.
The grievance letter filed by the Union on September 28, 2004 took the form of a letter addressed to the Company's Senior Vice-President for Eastern Canada from the Union's General Chairperson. That letter alleges, among other things, that in November of 2003 a supervisor "badgered" the grievor to disclose the details of a personal medical condition which had occasioned his absence. In December of 2003 the grievor was made the subject of a disciplinary investigation concerning his attendance at work in the period commencing in September of 2003, resulting in a written reprimand. In January of 2004, when he sustained an injury at work, the grievor alleges that the same supervisor became hostile and angry towards him when he submitted his "injury on duty" form. The grievance alleges that he was then subjected to questioning by the supervisor for some five hours and was released after being at work for a total of thirteen hours. The grievance further alleges that in March of 2004 the grievor sustained a knee injury while at work and, upon filing the necessary documentation, was again confronted with an angry and aggressive response from his supervisor. The grievance alleges that the supervisor asserted that the injury sustained by Mr. Croteau were unacceptable and that she would put an end to it. Subsequently the grievor was declared by his physician to be unfit for duty from March 10 to March 29, during which time the Company placed him under surveillance by a private investigator.
A further disciplinary investigation ensued during which the Company presented the resulting video taped evidence of the activities of the grievor and his family, apparently agreeing that they did not disclose any impropriety. The complaint relates that no discipline has issued pursuant to the investigation, albeit that it remains open under an extension of time limits granted by the Union. In the interim, Mr. Croteau complained to another supervisor to the effect that he was being targeted and that the activities of the private investigator were improper, alleging animosity aimed at him. The complaint relates that the grievor is presently under the care of a physician for "severe traumatic stress" apparently caused by the grievor's belief that a company supervisor is bent on ending his employment with the Company. By way of remedy, the grievance seeks an apology to the grievor and his family, assurances that he will not be disciplined and compensation for all earnings lost. The Union also seeks "equitable compensation" for Mr. Croteau and his family for the alleged harassment and intimidation.
The Company submits that to the extent that the grievance and subsequent ex parte statement of issue do not identify any article of the collective agreement allegedly violated, the grievance is not arbitrable. In that regard the Company argues, in part, the language of clause 10 of memorandum of agreement establishing the CROA&DR which reads as follows:
Counsel for the Union submits that recent decisions of the Supreme Court of Canada make it clear that by reason of the provisions of the Canada Labour Code the protective provisions of employment related statutes are to be implied as terms contained within the collective agreement and can, of themselves, be the basis for an arbitrable grievance through the grievance and arbitration process of the collective agreement. In support of that position he cites three decisions of the Supreme Court of Canada: Re Weber v. Ontario Hydro  2 S.C.R., 929; Re New Brunswick v. O'Leary,  2 S.C.R., 967; Re Parry Sound (District) Social Services Administration Board v. O.P.S.E.U. Local 324,  S.C.C. 42. The Union further relies on the recent decision of Arbitrator Owen Shime in Toronto Transit Commission and Amalgamated Transit Union, an as yet unreported award dated October 6, 2004.
The Company's harassment policy, found within a document entitled "Human Rights Policy - Harassment Free Environment", defines harassment, in part, in the following terms:
The policy also contains the following mission statement:
The issue in these proceedings is whether this Office, or any board of arbitration, can seize jurisdiction of a grievance which cites violations of work related statutes, and makes no reference to any article of the collective agreement as being allegedly violated. Intrinsic to the analysis of the issue are the provisions of section 60.1(a.1) and 60.1(b) of the Canada Labour Code which provide as follows:
At one time the conventional wisdom was that a statutory provision such as that in section 60.1 of the Canada Labour Code, and analogous provisions of provincial labour relations statutes governing arbitration, applied only to allow a board of arbitration to disregard the provisions of a collective agreement which conflict with a public statute and to effectively enforce the higher standard of the statute itself. That approach flows largely from the decision of the Supreme Court of Canada in McLeod v. Egan  1 S.C.R. 517, a decision which predates the amendment of the various labour codes in Canada granting to arbitrators the power to interpret and apply employment related statutes. In that case the Court ruled that an arbitrator cannot, in effect, interpret an open ended management rights clause so as to allow employees to be scheduled for hours in excess of the limit mandated by the Employment Standards Act, S.O. 1968, c.35. To borrow from the language of old estoppel law, the generally accepted view was that provisions such as section 60.1(a.1) of the Canada Labour Code were intended as a shield, and not as a sword. In other words, they could be used to protect employees against what would otherwise be the application of illegal or abusive provisions of a collective agreement which are contrary to the standards of a public statute. In such cases, however, the jurisdiction of the board of arbitration was generally thought to be grounded in the impugned provision of the collective agreement.
The recent decision of the Supreme Court of Canada in Parry Sound, however, represents a substantial evolution of the concept originating in McLeod v. Egan, and arguably interprets provisions such as section 60.1(a.1) of the Code as a sword which can be unsheathed to independently ground a grievance, regardless of the express terms, or the silence, of a collective agreement, in the matter of the rights and obligations being enforced. In Parry Sound the majority of the Supreme Court of Canada found that a board of arbitration could take jurisdiction of a grievance of a probationary employee who had been discharged. Although the collective agreement expressly provided that a probationary employee could be discharged at the discretion of the employer without recourse to arbitration, the Court sustained the decision of Arbitrator Paula Knopf to find that the arbitrator could, through the grievance and arbitration provisions of the collective agreement, enforce the protections afforded to the grievor under the Ontario Human Rights Code, in light of her allegation that she had been discharged by reason of having taken pregnancy leave. At p. 173, Iacobucci J. stated the following conclusion on behalf of the majority of the Court:
It is clear that the Court consciously moved the fundamental principle underlying McLeod v. Egan to a much broader application. In dealing with the analysis of McLeod v. Egan, and disagreeing with the dissenting opinion of Major and Lebel JJ., the majority wrote as follows at pp 175-77:
In the result, at p. 188 the Court stated the following conclusion:
To the sure, the approach taken by the majority in Parry Sound has provoked some discussion, not unlike prior concerns expressed over the Court's "inferential" finding of sweeping arbitral jurisdiction in Weber and O'Leary. Lebel and Major JJ. expressed their dissent, in part, in the following terms in Parry Sound, at pp. 202-203:
(See also M.G. Picher, "Defining the Scope of Arbitration: The Impact of Weber - An Arbitrator's Perspective", (1999-2000) Vol. I Labour Arbitration Yearbook 99. )
Whatever the merits of the academic debate, a board of arbitration, including this Office, is compelled to take the law as it finds it. It would appear, therefore, that a grievance alleging little more than the violation of a work related statute is properly arbitrable within the jurisdiction of a board of arbitration. That seems to be the lesson reflected in the award of Arbitrator Shime in Toronto Transit Commission and Amalgamated Transit Union, dated October 6, 2004. In that case Arbitrator Shime found that the collective agreement before him contained no express provision prohibiting the abuse or harassment of employees by supervisors. He found that the Company and a named supervisor did engage in the improper harassment of the grievor to the extent of inflicting upon the employee a condition of stress related anxiety for which he required medial attention. Arbitrator Shime found the conduct of the Company to be in violation of its obligation to maintain a safe and healthy workplace as required by the Occupational Health and Safety Act of Ontario R.S.O. 1990 c. O-1. Following Weber and O'Leary. He concluded that he had jurisdiction to deal with the grievance. He also found that the employer was constrained by the standard of reasonableness in the application of the management rights clause of the collective agreement. The extensive reasons of Arbitrator Shime contain the following conclusion:
Having reviewed the provisions of the Occupational Health and Safety Act, Arbitrator Shime reasoned as follows:
In the result, in the Toronto Transit award Arbitrator Shime found violations of the implicit terms of the collective agreement and directed the compensation of the grievor by the restoration of his sick leave credits and the topping up of his sick pay. Additionally, he ordered the payment of $25,000 in general damages against the supervisor and the Company, jointly and severally. Finally, he directed the employer to ensure a harassment free workplace, including the institution of an anti-abuse and an anti-harassment training program for all management, coupled with a direction that the grievor be allowed to work free of the presence of the offending manager.
How do all of the foregoing principles apply to the case at hand? In my view there can be little doubt but that the grievance must be found to be arbitrable. Firstly, the letter of the Union's General Chairperson specifically invokes three work-related statutes with relatively clear specificity as to how it is alleged they were violated. By any reasonable reading the letter would indicate that in the Union's view the Company's managers sought to violate the grievor's rights of privacy by attempting to have him disclose the nature of a personal illness. The Union's allegations, obviously as yet unproved, also extend to asserting that the Company resorted to disciplinary procedures to effectively discourage the grievor from making claims in relation to work-related injuries in a manner that would amount to discrimination on the basis of an illness or disability. Moreover, if it were necessary to find reference to any collective agreement provisions within the text of the Union's letter, reference to the disciplinary investigations, procedures which are extensively provided for under the terms of the collective agreement, would be sufficient. At a minimum, the letter of the General Chairperson effectively states that the Company misapplied and abused the disciplinary investigation procedure which is found within the collective agreement. In the result, therefore, and having regard to the authorities reviewed above, the Arbitrator is satisfied that there is an arbitrable case stated in the grievance document provided to the Company by the Union, and that this Office therefore has jurisdiction to hear the matter.
The Union's ex parte statement of dispute also raises the Canadian Charter of Rights and Freedoms, an issue not argued in its brief. This award makes no comment on whether that is an improper expansion of the grievance or whether the Charter could apply, in any event, to the actions of a non-governmental employer.
Notwithstanding the foregoing finding of arbitrability, there is a further consideration. One of the very reasons for the granting of wider jurisdiction to boards of arbitration under section 60.1(a.1) of the Canada Labour Code to interpret and apply work related statutes is to prevent a multiplicity of proceedings. Prior to the advent of these provisions it was too common for parties to find themselves before two or more tribunals with respect to a single cause of action. For example, a given alleged infraction of a collective agreement might also have been properly characterized as a violation of employment standards legislation and a human rights code, resulting in simultaneous complaints being made to several tribunals. Part of the rationale for provisions such as section 60.1(a.1) of the Code is to provide the expediency of single forum resolution of multi-facetted complaints based on a single set of facts. Being conscious of these provisions, tribunals have attempted to avoid the multiplicity of proceedings. That, for example, is reflected in the current practice of human rights commissions to defer the processing of complaints when it is apparent that the complaint before the commission is fully capable of being remedied under the grievance and arbitration provisions of a collective agreement.
In the instant case, by his own choice, the grievor filed a complaint under the Company's harassment policy, a policy fashioned in consultation with the Canadian Human Rights Commission and, the Arbitrator is advised, ultimately approved by the Commission. The grievor's complaint under that process is in fact being carried by the Union. While it was suggested by counsel for the Union that it was a different branch of the Union, being the legislative branch, which is responsible for that complaint, in the Arbitrator's view it can only be concluded that the same bargaining agent is proceeding on the grievor's behalf, under the procedures of the Company's harassment policy. In my view it would be counter-productive to compel the Company to proceed simultaneously in both the arbitration forum and the internal complaint process. It appears to me that the matter can be dealt with in a manner which does not prejudice the interests of either party if the instant grievance is, for the reasons related above, declared to be arbitrable but placed in abeyance for scheduling on the merits, pending the resolution of the harassment policy complaint process, whether through a decision of the Company, a settlement or the withdrawal of the grievor's complaint under that process.
For the foregoing reasons the Arbitrator is compelled to reject the preliminary objection as to arbitrability registered by the Company. I am nevertheless satisfied that the hearing of the grievance would be premature so long as the harassment complaint process under the Company's policy remains ongoing. The General Secretary of the CROA&DR is therefore directed to keep this matter in abeyance pending further direction by the parties concerning the status of the harassment policy complaint filed by the grievor and being presently handled by his bargaining agent.
|January 17, 2005||
(signed) M. G. PICHER|