Thursday, February 7, 2013

Arbitration summaries with human rights overtones-- discrimination on the basis of sex or family status

The focus of this post submitted by Diane Maclean is on discrimination on the basis of sex and family status. An employee can grieve, alleging a contravention of the collective agreement (if clauses have been negotiated). Or, an employee can grieve an alleged contravention of the Human Rights Code, as arbitrators have full authority to apply the Code. The applicable section of the Code is Section 13 (1), which provides:

A person must not

(a) refuse to employ or refuse to continue to employ a person, or

(b) discriminate against a person regarding employment or any term or condition of employment

because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person …

Note: the Canada Human Rights Act and other provincial human rights legislation have similar provisions.)

In the workplace, allegations of sex discrimination can arise in many circumstances, but the most common are the failure to return an employee to her position after maternity and/or parental leave and sexual harassment. In this post, I have summarized three decisions that were reported on CanLII. One of these decisions is in regard to entitlements to special leave to attend to a sick family member. While not commonly a human rights issue, it seems to dovetail with the cases involving pregnancy and parental leave.

I have also referred to some related decisions reported on Quicklaw that are interesting reads. You can locate Quicklaw decisions at any courthouse library in the province.

UNITE HERE, Local 40 v Compass Group Canada Ltd.

Date: May 24, 2012 Arbitrator: James E. Dorsey, Q.C.

Grievance: Failure to return to position on return from maternity leave (grievance allowed)



The grievor started working for the employer in January 2008. She took maternity leave in April 2010. At that time she was working as a cook for 35 hours per week. The collective agreement stated that she was entitled to “return to the same job”, which continued to exist. She returned to work in April 2011 and was not returned to the same job; instead, she was demoted to “casual on call”. The union grieved this alleged breach of the collective agreement and later added allegations of breaches of the Employment Standards Act and the Human Rights Code.

Analysis and Decision

The arbitrator allowed the grievance and concentrated on determining a remedy. First, he ordered reinstatement to her pre-leave position and work schedule. He also order lost wages in the amount of plus pre-judgement interest, the option to make contributions to the pension plan with matching contributions from the employer, credit to accrued vacation, and seniority credits (for the duration of her maternity leave and for the period for which she lost wages). The arbitrator declined to award several remedies under the Human Rights Code that had been requested by the union.

Below are some recent decisions related to maternity and parental leave:

 • Okanagan College v. Okanagan College Faculty Assn., [2012] B.C.C.A.A.A. No. 137 (Quicklaw): the grievors were term (i.e., not regular or continuing) college instructors. The grievors were denied credit for Teaching Load Units when they were on maternity and/or parental leave. The accrual of these credits determines when an instructor will be eligible for conversion to a continuing appointment. The union argued that the grievors were “unfairly discriminated against” in that other term instructors may accrue rights to work and may be positively recommended for conversion to continuing positions. The union alleged that this could result in a “resultant loss of secure continuing work”. Arbitrator Hall dismissed the grievance, deciding there was no breach of the collective agreement or the Human Rights Code. This case is interesting because it provides an extensive review of decisions regarding this issue.

British Columbia Public School Employers’ Assn. v. British Columbia Teachers’ Federation (Supplemental Employment Benefits Grievance), [2012] B.C.C.A.A.A. No. 138 (Quicklaw): In this case, the employer argued there was no discrimination because birth mothers, birth fathers, and adoptive parents were equally eligible for 15 weeks of top-up of their employment insurance benefits. The birth mother could choose to take the top up during her maternity leave or during parental leave. The arbitrator disagreed and allowed the grievance. There was a good review of other decisions in this area, focusing on the purpose of pregnancy leave versus parental leave.

 Osprey Care Inc (Hamlets at Penticton) v Hospital Employees’ Union

Date: June 28, 2012 Arbitrator: John P. Sanderson, Q.C.
Grievance: Termination for inappropriate sexual behaviour (grievance dismissed)



The employer operates a long-term care facility where the grievor had been employed as a Registered Nurse since February 2009. In October, 2011, the grievor’s employment was terminated as explained by the events set out in the letter of termination:

• First, the grievor was suspended after a co-worker (also referred to as complainant) alleged inappropriate sexual conduct away from the work place;

• The employer conducted an investigation and the grievor denied the allegations;

• The employer also referred the matter to the College of Registered Nurses of British Columbia;

• The grievor refused to provide a copy of a previous consent agreement with that body;

• Notwithstanding the consent agreement, the grievor still denied wrong doing; and

• The employer concluded that the grievor did engage in inappropriate sexual conduct with the Complainant – given the grievor’s denials, the employer did not feel that the grievor was remorseful for what happened or accepted responsibility for what happened, such that the conduct would not be repeated in the future.

The evidence showed that the grievor came to the co-worker’s parents’ house while her parents were away. Each employee had a different version of events – the co-worker said that the grievor was uninvited and that he sexually assaulted her. The grievor said he was invited and that the sexual activity was consensual. The co-worker reported on what had happened to her boyfriend and parents and then contacted the police. The grievor was put on an unpaid leave. Although charges were laid, the Crown decided not to proceed with the charges. The employer decided to conduct its own investigation – the co-worker co-operated and the grievor did not.

During the course of the investigation, the employer discovered that the grievor had signed a consent agreement with the College of Registered Nurses of British Columbia in 2009. The grievor refused to provide the employer information about the consent agreement. At the hearing, he admitted that the consent agreement contained restrictions on his licence to practice arising from a sexual encounter at another workplace where he was disciplined and the incident reported to the CRNBC.

Analysis and Decision

The arbitrator had to decide who was telling the truth and whether the incident or the behaviour of both individuals was work-related. The arbitrator found the co-worker more credible than the grievor and accepted her evidence. In regard to whether the conduct was related to the workplace, the arbitrator noted that the sexual harassment began in the workplace (patting on the backside). Although the grievor denied this, he agreed that he flirted with her at work and made suggestive remarks. The arbitrator did not agree with the union’s position that this was a private encounter that had nothing to do with the workplace, stating that “on the grievor’s own evidence and admission, he was attempting to establish a relationship with the complainant; the only time they had contact was at work.”

The arbitrator decided the disciplinary penalty was not excessive in the circumstances, for the following reasons:

• the grievor had been untruthful in giving his evidence;

• he exhibited no remorse or expressed any sympathy for the complainant or to the employer;

• remained uncooperative and unapologetic throughout the employer’s investigation;

• refused to co-operate with the employer in supplying information as to the reasons for the restrictions on his licence imposed by the CRNBC; and

• at the hearing, he insisted that the complainant was so attracted to him that she was the instigator of the event.

[Note: if these events had not been dealt with promptly and appropriately, instead of a grievance regarding a termination, there could have been a sexual harassment grievance from the co-worker.]

British Columbia Maritime Employers Assn. and Western Stevedoring Ltd. V. International Longshore and Warehouse Union, Local 500 [2012] C.L.A.D. No. 86 [note: available on Quicklaw--note quicklaw is not a free database but is available at any courthouse library in the province]

Date: March 9, 2012 Arbitrator: Robert Pekeles

Grievance: Dismissal for insubordination/refusal to follow directions (grievance allowed)


[Note: The arbitration day took 38 days and resulted in a 54-page decision. The hearing dates began in May 2008 and concluded in January 2010. The arbitrator had earlier issued four separate interim decisions. By agreement, the decision on the dismissal did not include a decision on a remedy, which would be dealt with in a subsequent hearing. The analysis of discrimination was under the Canada Human Rights Code, but would be equally applicable to the B.C. Code.]


From 2004 until the date she was fired in April 2007, the grievor worked exclusively for Western Stevedoring Ltd. The grievor worked in an area where there was a head foreman and usually 6 or 7 employees. The grievor testified that she was intimidated by the head foreman, finding him gruff and difficult to talk to. He talked openly with other employees but not with her. The grievor testified about the language used when other foreman visited the head foreman in his office. There was reference to the words b-----s and c---s. She also heard the following: Holy shit, you are still here.” “Wow, the broad is still here.” “Why are you still here?” “Why do you want to work here?” “There are no women at the locker, haven’t you learned that yet?” “Go make me some bacon and eggs.” Do you want to do my laundry? When washing coffee pots, that “You know your place.” The head foreman testified that he never heard these kinds of remarks, but the arbitrator preferred the evidence of the grievor.

The head foreman also told the grievor that she was referred to as a “gimmick c---“ on the back of her business agent husband. Apparently, a “gimmick” refers to a person who receives special favours. The grievor acknowledged that there are a lot of family members on the waterfront. The male workers get ribbed about it, but do not get called “c---s”. The head foreman never said if he agreed with the reference to the grievor as a “gimmick c---“.

On April 10, 2007, the head foreman asked a co-worker to do a task that the co-worker thought was the grievor’s job. The head foreman was angry. The grievor told the head foreman that it was her job. The head foreman said to do another task and the grievor said she would do it after she finished her job. The head foreman asked the grievor several times if she was refusing to follow his direction. The grievor said she was just trying to do her job and didn’t think she was refusing his direction. Eventually the head foreman fired her.

Analysis and Decision

The arbitrator noted that:

… among certain Western foremen at least, there were sexist attitudes towards [the grievor]. The comments made by certain Western foremen about her were sexist, plain and simple. Such comments have no place whatsoever in any workplace today.

The arbitrator then focused on whether sex discrimination was a factor in the dismissal and made the following findings:

• The head foreman told the grievor that she was called "gimmick c---" on the back of her Business Agent husband. The arbitrator was of the opinion that “to "share" such a negative sexist view with a member of his workforce, without disagreeing with it, sends a very negative sexist message to that employee who reports to him”;

• The head foreman would not look at grievor and had very little to say to her, while he talked openly with other employees. He would tell stories and jokes. He also talked about having to adjust to women in the work force and the grievor was the only woman who regularly worked in the locker throughout her period of employment there;

• The head foreman gave the grievor very specific directions to her work while the former employee in the position was not so directed. The arbitrator saw this as another indicator of a discriminatory attitude on the head foreman’s part; and

• The arbitrator concluded that the head foreman treated the grievor differently in regard to a possible refusal to work. For example, when the other employee had possibly refused to do work as directed, the head foreman did not ask him twice if he was refusing work – he only did that with the grievor.

The arbitrator concluded that the grievor’s gender was "a factor" in the employer’s decision to dismiss the grievor. However, the arbitrator did find there was also just cause for discipline based on the grievor’s refusal to accept the head foreman’s work direction. The arbitrator concluded that dismissal was excessive and concluded that a written warning would be a “just and reasonable” substitute, given the breach of the Canada Human Rights Code, the head foreman’s prodding the grievor regard the refusal to work but not the other employee involved, the grievor’s previously clean discipline record, and that there was no problem with her work. The arbitrator left the remedy to a future hearing.

Another  interesting decision that can be found on Quicklaw is: Warner Bros. Television (B.C.) Inc. (Supernatural 5 films Inc.) v. British Columbia and Yukon Council of Film Unions, [2012] B.C.C.A.A.A. No. 145 (Quicklaw): although not specifically sexual harassment, this is a case on workplace harassment generally. In this case a very senior costume designer was dismissed for grabbing the arm of an employee, making derogatory comments about employees’ ancestry, making inappropriate comments to employees she supervised about the physical appearance of a producer, and making demeaning remarks about persons she supervised.

After hearing the testimony, the arbitrator was satisfied that, in addition grabbing an employee’s arm hard enough to leave bruises, that the grievor made a number of derogatory, inappropriate and demeaning remarks. The arbitrator then applied the Wm. Scott principles and found there was just and reasonable cause for some form of discipline. However, he found that the discipline imposed was excessive. He was not satisfied that it would be appropriate to reinstate the grievor to her former supervisory position and he did not order back pay. The conduct was a serious breach of the employer’s policy and the arbitrator commented that the grievor “appears to lack the insight or possibly the training and guidance to improve her conduct”. Before making a ruling on the issue, the arbitrator thought it would be useful to “allow the parties an opportunity to discuss possible terms and conditions under which the Grievor could be entitled to work on future WBTV productions”.

III. Fraser Health Authority (Surrey Memorial Hospital) v. Health Sciences Association of British Columbia, 2012 CanLII 24878 (BC LA)

Date: April 12, 201 Arbitrator: Mark J. Brown

Grievance: Entitlement to special leave (allowed in part)



The special leave provision in the parties’ collective agreement provides that such leave would be granted “to provide care to an immediate family member who has a serious illness”.

The grievor’s husband went into the hospital on April 29, 2001. The grievor worked a 7:30 to 4:00 p.m. shift and, from April 29 to May 4, visited her husband after work. The grievor was at the hospital on the evening of May 4 when the first surgery was done. She was advised that the surgery had not gone well and that her husband had gone into cardiac arrest. The grievor advised the employer that she would not be at work the next day. When she went to the hospital on May 5, her husband was anxious and she provided emotional service and other assistance to her husband. The surgery occurred around 10:30 a.m. and the grievor waited at the hospital, in case there were further complications. She then stayed with her husband when he was returned to his room until he went to sleep. The grievor reported to work the next day, and asked her supervisor whether her day at the hospital could be considered “special leave”. Her supervisor said it was not. She filed a grievance about this.

The grievor also stayed at home with her husband on May 20th, because he was experiencing symptoms similar to those prior to the surgery. She reported to her supervisor that she was at home caring for her husband and requested special leave. Her husband asked if anyone else was available and the grievor said she was the only adult at home. Her supervisor granted this leave. She also received special leave in July when she had to take her husband to emergency. Her husband was also hospitalized in August for two days. The grievor did not request special leave as she assumed it would be denied.

The supervisor testified that he denied special leave for May 5 because the grievor was not providing medical or physical care as that care was being provided by the hospital staff.

Analysis and Decision

The arbitrator said that the onus is on the employee to demonstrate that their situation falls within the special leave provision. However, the employer is required to seek additional information from the employee (if it feels information from the employee is lacking) in order to make a correct decision.

The issue here was whether the grievor “provided care” to her husband. The arbitrator agreed with the union that care is not restricted to medical, therapeutic and physical needs. He noted that the grievor did not apply for special leave on May 4 when the surgery appeared to be routine and where her attendance at the hospital would not have been related to the care. However, after the serious complications that day, the grievor saw her husband and was not sure he understood what had happened. He husband also said he was scared. The arbitrator commented:

When [the grievor] attended the hospital on May 5th she provided emotional care, was involved in providing feedback to the medical team during preoperative assessment, provided [her husband] with a bed pan and was there in case medical decisions were required.

The arbitrator concluded that in this case the grievor was providing care on May 5 and was entitled to special leave. He also noted that “this case does not stand for the proposition that in any situation where an immediate family member is hospitalized, an employee is entitled to special leave.” In particular, an employee’s personal need “to be there” does not entitle that employee to special leave.

[A decision on Quicklaw dealing with family leave is: WorkSafeBC v. Compensation Employees’ Union, [2012] B.C.C.A.A.A. No. 76. In this expedited arbitration, the collective agreement agreement provided for two working days of leave in case of the serious illness of a close relative. The grievor took time off to be with her hospitalized mother-in-law on two separate occasions during the same period of hospitalization. The issue was whether the two absences dealt with one or two separate illnesses. The arbitrators found that there were two separate illnesses and granted the grievor one more day of paid leave.]

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