An expedited process for harassment complaints

The grievance arbitration process is often an inadequate tool to resolve harassment disputes. One significant drawback is that it takes too long from the time a grievance is filed until it is heard at arbitation. Partly, that is because collective agreements, quite properly, set out various stages of the grievance procedure to allow the parties the opportunity to discuss and try to resolve matters without resorting to arbitration. More significantly though it is because once the discussion stages are completed it takes months to get to a hearing and get decision from an arbitrator.

Meanwhile, the harassment complaint languishes unresolved, with the victim at home sick with depression or some other form of mental distress, the alleged harasser in the workplace also unsure of what his or her future might hold, and the amount of potential damages that the employer may have to pay in the end increases.

So it's refreshing when arbitrators, rather than awarding the usual systemic remedy directing an employer to institute a policy and tell the union about it, take the extra step and impose a speedy arbitration process of harassment grievances. Vince Ready did just that in a decision issued February 6, 2008 involving CUPE Local 394. In its submission the union had proposed an expedited process and, to its credit, the employer did not oppose the proposal.

For a period of two years, which roughly coincides with the remaining term of the collective agreement, Mr. Ready ruled that harassment issues will be dealt with as follows:

A. There will be a three member panel made up of Vince Ready as chair and sole decision maker, Naz Mitha or Fran Doyle as the employer advocate and advisor to the chair and Carmela Allevato as the union advocate and advisor to the Chair.

(Comment: On behalf of the Union, I urged that there be a standing panel to deal with these kinds of issues so that we would be able to monitor the changes in workplace culture and to make systemic recommendations.)

B. Prior to bringing any matter before the panel, the union must present the matter to the employer's representative, in writing, to allow the employer ten days to attempt to resolve the matter. Similarly, the employer must present any matter to the union executive, in writing, to allow the union ten days to attempt resolution. In either case, if resolution cannot be reached within ten days, subject to the mutual agreement of the parties to extend the time to effect a resolution, the matter may come before the panel for a determination.

(Comment: There are two important features to this section. The most significant one of course is the ten day time limit. If the parties can't resolve a complaint within ten days it goes to the panel. The other feature is that the matter has to be presented in writing. This in my view is more than just the usual "failure to provide a harassment-free workplace". It forces the parties to do more work at the front end of an issue with a view to being precise about the complaint and the remedy sought.)

C. The determination of any issue brought to the panel under this expedited process will be non-precedential unless the parties (Union and Employer) mutually agree otherwise.

D. The parties agree that to the extent necessary to effect the recommendations herein, this document supersedes the grievance/arbitration procedure under the Collective Agreement between the parties.

(Comment: Here we find recorded the agreement between the union and the employer that they are willing to try a different way to address these issues. Note that agreement is necessary because an arbitrator does not have authority to amend the collective agreement.)

E. In coming to any decision or resolution, the panel will have regard to not only the issues, but a broader context of the appropriate educational programs for the City staff and Works Yard employees and will make recommendations to that effect.

(Comment: This section deals with the fundamental issue that underlies the creation of a respectful workplace. It is not enough to deal with the individuals directly or immediately affected by the harassment. Those on the periphery of the harassment are essential to the culture shift that is required if we are ever to end this blight.)

Will this process work? We don't know, but we will have an ability to measure, by the end of the two years, whether progress has been made. To quote Mr. Ready:

Such a procedure hopefully will help the parties come to a better understanding of the appropriate norms of acceptable workplace conduct but more importantly, will provide quick execution of future claims (unlike the present case which has taken nearly five years to conclude).

read local paper report at the link below:

http://www.canada.com/richmondnews/news/story.html?id=238212bf-8695-4709-b73c-c3a2fcc34e8f