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Queen's University
 

Waterloo v CUPE

University of Waterloo v. CUPE, Local 793 (Quaiser Grievance) [2009] O.L.A.A. No. 165

Facts

The grievor was a carpenter at the University of Waterloo; his workspace was located in a student residence. 

He was disciplined on two occasions for different reasons.  First of all, a residence manager approached the carpenter to express concern about his habit of not locking doors contrary to University policy. The carpenter's response, i.e. "Things are going to change around here!" was found to constitute a threat of violence. The carpenter received a formal warning from the employer.

Days later, a foreman entered the carpenter's workspace looking for work orders. He observed a series of postings that were sexual, violent and/or self-deprecating in nature. These included:

  1. An oversize poster of Michael Jorden about to shoot a basket. The wording was "Stop or I'll shoot". In the wake of several shootings in North American universities, this message was considered to be extremely omnious and threatening.
  2. A display of pictures of actor Jennifer Tilley along with the carpenter's desire to stalk "Jennifer" and then "to get the help that [he] so desperately needs". This posting raised fears that the carpenter might be stalking women on campus.
  3. A display of pictures of Karla Holmolka along with a blurb containing sexually violent expressions like "spank me" and "die trying". This posting was particulary threatening given the murder of school girls committed by Homolka and Bernardo.

There were other sexually charged-postings and objects in the carpenter's office, including:

  1. Pictures of women in various states of undress, accompanied by expressions such as "size matters" and "new and improved".
  2. A pink plush toy bearing the sign "Gaylord"
  3. A trophy featuring a man with an erection
  4. Photos of Shania Twain labeled "vibrohore"

For these postings, the carpenter was placed on leave pending investigation and was eventually discharged for representing a threat of workplace violence, and for creating a poisoned environment contrary to the Collective Agreement

Arguments

The Union grieved the dismissal, claiming that the carpenter had been posting offensive material in his various workstations for the past fifteen years without repercussion; had he been asked to take them down, he would have willingly complied. Moreover, other union members had been posting/were still posting sexually inappropriate material in their respective workstations without being subjected to any form of disciplinary action. Neither the Union nor the University monitored their workstations or enforced the respectful environement/offensive materials articles of the Collective Agreement.  Finally, the carpenter's workspace was not accessible to the general public of the university; if fellow employees felt offended by the kinds of materials posted there, they could choise to gather elsewhere. 

The University argued that this man represented a threat of workplace violence and that, according to case law, they had the right to dismiss him without establishing intent (the carpenter claimed it was all a big joke). Alternatively, it claimed that the postings were grossly inappropriate and offended the Collective Agreement article on maintaining a respectful environment in the workplace.

Issues

  1. Did the University err in dismissing the carpenter for being a threat of workplace violence?
  2. Did the University err in dismissing the carpenter for creating a poisoned environment ?

Rulings

  1. Yes
  2. Yes

Reasons

  1. The carpenter did not represent a threat for the following reasons: 1) The comment "things are going to change around here" referred, most probably, to changes that the carpenter hoped to implement concerning the policy of always keeping doors locked 2) The Michael Jordon poster had been in the office before the carpenter arrived. The words "stop or I'll shoot" were not his. 3) The Karla Holmolka display was more about a sexual fantasy (with elements of bondage) then about a threat of violence. 
  2. Although the postings were inappropriate and did create a poisoned environment (for men and women), and although the Union was mistaken when it claimed that offended workers need not enter the carpenter's workspace, the conduct did not call for dismissal for the following reasons: 1) Both the Union and the University should have taken a more active role in enforcing the collective agreement article on offensive materials;  2) Other employees were posting sexually explict materials without recrimination; 3) the grievor had been posting his materials for the past 15 years without repercussion and 4) the grievor had been working for the University for 19 years and had a clean disciplinary record.

Order

The Arbitrator ordered the University to reverse the dismissal, to reinstate the grievor. 

The University was not, however, required to compensate the grievor for lost wages for three reasons:

  1. He did not acknowledge the inappropriateness of the materials until the hearing
  2. The Karla Holmoka material was egregiously inappropriate  
  3. It is necessary to "drive home to the grievor in no uncertain terms the inappropriateness of his conduct and the requirement that it never be repeated".

 

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