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Queen's University
 

Brandon University Faculty Association v. Brandon University (Management Grievance) [2009] MGAD No 28.

What kinds of orders does an arbitrator make to resolve issues arising from a human rights investigation alleging discrimination and harassment by the University towards the Director of an academic Aboriginal program?  

Facts:

The Faculty of Health Sciences at Brandon University has a program called the First Nations and Aboriginal Counseling program (FNAC). Its website describes it as follows:

The First Nations and Aboriginal Counselling (FNAC) Degree Program is a creative innovative and interdisciplinary blend of Traditional Indigenous Teachings and Western counseling theories and skills. Traditional philosophies and Spiritual practices are taught through Circle in the Ceremony Room and with the land-based activities incorporated Elders. Personal growth and development as counselors is recognized as an ongoing journey throughout the program.

The coexistence of the FNAC within the Faculty of Health Sciences was not harmonious. In 2006, the Director of the FNAC made allegations of harassment and discrimination against the University.  In addition, BUFA (Brandon University Faculty Association) filed a policy grievance (March 2006) against the University regarding the management of FNAC. Dr. Shirley Katz was commissioned to investigate the allegations of the Director and BUFA’s policy grievance. She found that no acts of discrimination or harassment had occurred but “identify[ed] errors and problems made by the University in dealing with the former Director of the FNAC program”. In July 2007, a BUFA filed a second policy grievance (substantially similar to the first) in which it defined the nature of the grievance as follows:

 “The Employer has fostered, and allowed to continue, an environment of disrespectful and patronizing behavior with regard to those involved in the First Nations and Aboriginal Counseling Degree Program. The staff and guest lecturers in the First Nations and Aboriginal Counseling Degree Program are treated are treated differently than in any of the other facilities at the University.”

The parties asked A. Blair Graham to arbitrate/mediate a settlement on behalf of the parties and, in the case of non-agreement, to resolve outstanding issues by the granting of remedial orders. 

Issues

  1. Should the University be ordered to make a declaration of having allowed a poisoned environment to exist at the FNAC and of having failed to alleviate the problems that existed there
  2. Should the arbitrator order that parts of the Respectful Environment Policy (covering harassment, discrimination, personal harassment and workplace violence be amended, notwithstanding the fact that it is a Board of Governor’s Policy?
  3. Should the arbitrator order that an advisory committee to the FNAC program be established?
  4. Should the arbitrator order the convocation of joint meetings to monitor and assess the state of relations between the Aboriginal committee and the larger University community
  5. Should the arbitrator order who should sit on the FNAC selection committee, start and end dates of advertisements for 2 academic positions; and timing of the hiring of the Coordinator?
  6. Should the arbitrator order that a revised protocol for the use of the ceremony room be adopted?
  7. Should the arbitrator order that a “multifaceted” educational strategy about living and working with Aboriginal colleagues and students be “regularly and repetitively” offered to all faculty, support staff and students at Brandon University and reviewed systematically to monitor effectiveness?

Decisions

  1. No
  2. No
  3. Yes
  4. Yes
  5. Yes
  6. Yes
  7. Yes

Reasons

  1. Due to lack of evidence, appropriateness and usefulness, the arbitrator denied this part of the grievance
  2. The arbitrator felt that since it was a board of governor’s policy, it would be inappropriate for him to make any such orders of amendment.  However, he did make a number of recommendations, some of which were in accordance with the wishes of the association, others in accordance with those of the university.
  3. Yes, and the parties were in agreement on the substantial features of such a body, which the arbitrator formalized into an order
  4. Yes, and the parties were in agreement on the substantial features of such meetings, which the arbitrator formalized into an order
  5. Yes, and the parties were in agreement on the substantial features of such meetings, which the arbitrator formalized into an order
  6. Yes, and the parties were in agreement on the substantial features of such meetings, which the arbitrator formalized into an order
  7. Yes, and the parties were in agreement on the need for such an initiative, which the arbitrator formalized into an order (see below)

Order

An Order is hereby granted that the University shall promptly undertake educational initiatives which will feature the following elements:

 

a)             All new employees will be given two sessions as part of the new employee orientation each August.

The first, done by a Brandon University Aboriginal faculty member will be a presentation which will provide new faculty members with perspectives on how to teach and work effectively with First Nations and Aboriginal students and colleagues. The second, which will be presented by the Director of Human Resources, will provide all new employees with information, and an opportunity to discuss the Respectful Environment Policy, the definitions there under, and the processes contemplated by the Policy, and will also provide all new employees with information and an opportunity to discuss expectations regarding human rights discrimination and harassment, personal harassment and workplace violence;

 b)             Members of the general University community, including faculty, support staff and students, will be invited to attend semi-annual sessions on how to teach and work effectively with Aboriginal students and colleagues. Specific topics may include cross-cultural awareness, Aboriginal traditions and cultural practices, Human Rights principles, and anti-discrimination practices, stress in the workplace, and Respectful Environment Policies. These sessions will be not less than 60 minutes in length, and will be held each October and February, beginning in October, 2009. They will be offered two times in one week, either on two consecutive work days, or on alternate work days, to enable as many people as possible from the University community to attend. Facilitators may include:

 i)               faculty or instructional associates from Brandon University, or other universities that have extensive experience in Aboriginal post-secondary education;

 ii)             Elders with relevant experience; or

 iii)           any other outside facilitator with appropriate qualifications and experience.

    Notice of these events will be distributed widely in order to encourage attendance from all segments of the Brandon University community. Attendance will be encouraged, but will not be mandatory;

 c)             In addition to the foregoing, within the School of Health Studies, the acting Director of FNAC, or the Co-ordinator, as the case may be, will be asked to continue to lead sessions periodically with senior practicum students on the importance of being knowledgeable about Aboriginal cultures when working with Aboriginal individuals, or their communities;

 d)            Members of the general University community, including faculty, support staff and students, will be invited to attend semi-annual sessions on Human Rights principles, and the Respectful Environment Policy, as it presently exists, and as it undergoes change, in the October/November, and February/March time periods in each year, starting in October/November, 2009. The sessions shall be conducted or facilitated by the Learning and Development Officer;

 e)             The University and BUFA will attempt to agree on a process whereby the above-noted programs and initiatives will be reviewed to assess their effectiveness, and whereby some or all of the programs and initiatives will be changed if necessary to improve their effectiveness, or ultimately discontinued if they remain ineffective, or if they are no longer required.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000