ARBITRATOR ORDERS RICHMOND FIRE SERVICE TO TAKE IMMEDIATE ACTION TO COMBAT SEX HARASSMENT

A British Columbia arbitrator has ordered the embattled Richmond Fire Rescue Department to take "immediate action" to protect its four female firefighters, who have suffered years of on-the-job sexual harassment, from their male colleagues' "juvenile and hostile" behaviour. The award criticizes the employer's unilateral – and inadequate – efforts to deal with the problem, and requires the employer to construct separate washroom, changing, and sleeping areas for women firefighters within 90 days. 

In March 2006, Richmond, B.C.'s four remaining female firefighters walked off the job in protest against ongoing sexual harassment by their male colleagues. The dramatic move followed years of internal and external complaints, at least one lawsuit, a human rights complaint, the resignations of two female firefighters, and the suicide of the force's only female captain in 2005. In a statement of claim filed that year with the British Columbia Supreme Court, firefighter Jeanette Moznik alleged that her male colleagues put human feces in her boots and pants, left a condom full of liquid in her locker, routinely used hardcore pornography in the workplace, and once cut off the water to her hose when she was fighting a fire. Moznik's suit further alleged that the employer and the union did not take her complaints seriously, and that the union "actively discouraged and attempted to thwart investigations by the RCMP in the past into allegations involving misconduct by its members."

When the Richmond Professional Fire Fighters Association filed a harassment grievance in May 2005, the City and the Association agreed to refer the grievance to mediation/arbitration before Arbitrator Vince Ready under s.89(h) of the B.C. Labour Relations Code. In a "Consent Order" issued on September 21, 2006, Arbitrator Ready directed the Richmond Fire Rescue Department to take immediate action to address the women firefighters' harassment complaints. 

Although the terms of his appointment did not require him to "make any formal findings of fact," Ready found that, "were this matter to proceed to full arbitration, there can be little doubt that sufficient evidence would be adduced to support a finding that women in the [Department] have faced treatment at work that amounts to harassment and sexual harassment." Citing "a culture amongst members of the [Department] characterized by juvenile and hostile behaviour towards ... women," Ready held that the male firefighters' conduct "meets the legal test for harassment and sexual harassment and thus discrimination on the basis of sex," as set out by the Supreme Court of Canada in Janzen v. Platy Enterprises Ltd., [1989] S.C.J. No. 41 (QL), i.e., "practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender." Finally, Ready found that "[i]n many instances this conduct was condoned by the employer or addressed in a half-hearted fashion."

Acknowledging that the union "must continue to take a leadership role within the bargaining unit in opposing harassment and sexual harassment in the workplace," Ready concluded that the ultimate responsibility for remedying the continuing harassment lay with the employer, because, as the Supreme Court of Canada stated in Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, "only an employer can provide the most important remedy — a healthy work environment." "Quite simply," he said, "the women at work at the [Department] right now have waited too long to see tangible progress towards equality in the workplace." In Ready's view, a five-year plan, adopted by the Richmond City Council in response to the recommendations of an external reviewer, was not adequate. Instead, "concrete and truly transformative measures" were necessary to "change the dynamic of the workplace with respect to the place of women in the [Department]." Accordingly, Ready ordered the Department to take "immediate action" in three key areas: (1) changing "the physical space for women at work so that they are no longer physically reminded that the workplace was designed for men, with women only an afterthought;" (2) "pursu[ing] behavioural change through increasing the commitment to ongoing awareness training immediately;" and (3) the establishment of a new dispute resolution process to deal with harassment allegations.

In the result, Ready ordered the employer to provide women firefighters with private change, washroom and sleeping areas at all of its firehalls within 90 days, and to "increase its commitment to ongoing anti-harassment and equality training." Finally, Ready reserved jurisdiction over all the outstanding sexual harassment complaints, and set out in his award an informal and expedited dispute resolution process to deal with any issues arising from the implementation of the award.

Read Arbitrator Ready's decision in International Assn. of Fire Fighters, Local 1286 v. Richmond (City).

HUMAN RIGHTS WATCHDOG ORDERS ARMY TO FUND IN VITRO FERTILIZATION

The Canadian Human Rights Tribunal has ordered the Canadian Forces (CF) to pay for in vitro fertilization treatments for a Warrant Officer's wife, ruling that the military's refusal to fund the procedure discriminated against the soldier on the base of sex and disability.

Diagnosed with male factor infertility in 1995, the complainant, a Warrant Officer, asked the Canadian Forces to fund in vitro fertilization (IVF) treatments in 1997 for his then-35-year-old wife. Since CF members are exempt from provincial health care plans, the CF provides health care to its members on a scale similar to provincial health care plans. Although the CF's health care plan did not fund IVF treatments before 1997, it changed its policy that year after a female CF member stationed in Ontario won a grievance claiming reimbursement for her own IVF treatment, based on the fact that the Ontario Health Insurance Plan (OHIP) paid for such treatments in limited circumstances (no other province does). 
 
Stationed in New Brunswick at the time, the complainant filed a formal request for IVF funding, which was turned down on the basis that IVF was available only in Ontario. In December 1998, the CF clarified its position, in its new Spectrum of Care policy, that funding for a maximum of three IVF treatments would be provided only for members with infertility flowing from fallopian tube obstruction, but not their civilian spouses, regardless of where they were stationed. The complainant filed a grievance, which the CF denied in January 2002, on the basis that spouses are not generally covered under the CF's health plan. He subsequently filed a complaint with the Canadian Human Rights Commission, accusing the CF of discriminating against him on the bases of sex and disability.  

In a September 15, 2006 award, Canadian Human Rights Tribunal Member Athanasios Hadjis upheld the complaint, and ordered the CF to pay for the complainant's wife's IVF treatments.

Rejecting the CF's argument that it funds pregnancy-related treatment only for women members because only women can get pregnant, Hadjis drew a distinction between "procedures that reverse infertility and procedures that induce or assist conception." Since IVF "do[es] not reverse the patient's male or female factor infertility," but "offer the couple the opportunity to conceive and have a child that is biologically theirs," Hadjis ruled, the CF's "too narrow" conceptualization of the procedures overlooked the fact that "by biological necessity, two individuals must be involved." In short, Hadjis held, IVF "is not merely a medical procedure that is being offered to female CF members," because "[t]hese women are being given a real opportunity to have a child." Accordingly, Hadjis ruled: "[The complainant] is denied a benefit that is at the same time being provided to female CF members, i.e. access to assisted conception by IVF." Hadjis concluded that the complainant had established a prima facie case of discrimination, in that "an adverse differentiation was made between [the complainant] and his female colleagues, on the basis of his sex."

Hadjis further ruled that the CF could not prove that accommodating the complainant and others like him would amount to undue hardship. The CF's evidence that the cost of funding IVF for all CF members and their spouses ranged between $10 million and $180 million was "unreliable and exaggerated," Hadjis ruled, but even if the $10 million figure was accurate, the CF did not prove that it would be "impossible ... to absorb this additional cost without incurring undue hardship." 

Finally, Hadjis agreed that the CF's policy discriminated against the complainant on the basis of disability, because "infertility constitutes a disability within the meaning of the Act," and the CF's policy drew an impermissible distinction between members with different forms of infertility. Upholding the complaint, Hadjis ordered the CF to pay for three cycles of IVF treatments for the complainant's wife, to pay the complainant $7,500 in damages for pain and suffering, and to "to take measures ... to amend its policy for the funding of IVF treatments, such that CF members with male factor infertility receive substantively equal benefits [to those received by] female CF members."

Read the Canadian Human Rights Tribunal's decision in T.B. v. Canadian Armed Forces.

TOP COURT TO WEIGH IN ON PUBLIC SERVANTS' SECURITY OF TENURE

The Supreme Court of Canada announced Thursday that it will hear a former Court Clerk's appeal from a New Brunswick Court of Appeal decision upholding the province's decision to terminate his employment, without alleging cause, and with provision for only four-and-a-half months' notice.

Two-and-a-half years after he was hired as a Clerk at the New Brunswick Court of Queen's Bench, David Dunsmuir was informed, on August 19, 2004, that his services were no longer required, as his "particular skill set" did not "meet the needs" of the employer. The government continued to pay Dunsmuir's salary through December 31, 2004, effectively giving him four-and-a-half months' pay in lieu of notice. Although Dunsmuir had been disciplined for poor performance three times since his appointment, the termination letter specified that "[c]ause for termination is not alleged." The government relied on s.20 of the New Brunswick Civil Service Act, which provides that termination of the employment of non-union civil servants "shall be governed by the ordinary rules of contract."

Dunsmuir initiated a grievance under s.100.1 of the New Brunswick Public Service Labour Relations Act (PSLRA), which provides non-unionized government employees access to the PSLRA's grievance process "with respect to discharge, suspension or a financial penalty." The province raised a preliminary objection, arguing that a PSLRA adjudicator had jurisdiction only to determine the appropriate notice period, and could not probe the reasons underlying the grievor's dismissal.

In a January 10, 2005 preliminary award, Adjudicator Ronald Stevenson rejected the province's jurisdictional objection, ruling that "[a] grieving employee is entitled to an adjudication as to whether a discharge purportedly with notice or with pay in lieu of notice was in fact for cause, either disciplinary or non-disciplinary, and I have jurisdiction to make such a determination." In a subsequent decision on the merits, Stevenson ruled that the grievor's dismissal was void ab initio, because in terminating his employment based on concerns "about his work performance and his suitability for the positions he held," the province breached the rules of procedural fairness by not giving the grievor clear feedback or an opportunity to "effect appropriate changes."

However, on August 4, 2005, the New Brunswick Court of Queen's Bench set aside the adjudicator's decisions, ruling that he lacked jurisdiction to inquire into the reasons underlying the grievor's dismissal, and on March 23, 2006, the New Brunswick Court of Appeal dismissed Dunsmuir's appeal. Even though the reviewing court erred in applying the correctness standard of review rather than reasonableness, the Court of Appeal held that the adjudicator's jurisdictional ruling was "unreasonable." It agreed with the province that, pursuant to s.20 of the Civil Service Act, "once it is recognized that the ordinary rules of contract are applicable, it follows that provincial employees may ... be dismissed for cause or with reasonable notice or money in lieu of notice." Although s.100.1 of the PSLRA entitles non-unionized public servants to grieve a dismissal, the Court of Appeal held, the adjudicator's jurisdiction to "substitute such other penalty ... as ... seems just and reasonable in all the circumstances" is limited, in PSLRA s.97(2.1), to cases where the employee "has been discharged or otherwise disciplined by the employer for cause."

The Court of Appeal concluded that "the Province retains the common law right to terminate a non-unionized employee's employment for cause or, alternatively, to terminate with reasonable notice," and that "the reasons underscoring the employer's decision to elect to terminate an employment with notice are irrelevant when it comes to the right of non-unionized employees to grieve their discharge under s.100.1(2) of the Public Service Labour Relations Act." The adjudicator's jurisdictional ruling "fails to meet the reasonableness standard of review," the Court of Appeal concluded, declaring: "If the province elects to terminate an employment with notice, the adjudicator's jurisdiction is limited to assessing the reasonableness of the notice period, unless discrimination is alleged."

On September 21, 2006, the Supreme Court of Canada granted Dunsmuir's application for leave to appeal from the New Brunswick Court of Appeal's decision.

Read the New Brunswick Court of Appeal's decision in Dunsmuir v. New Brunswick and a news story at cbc.ca.

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