A post-secondary teacher in Alberta found himself at odds with his employer and his union after being fired for alleged inappropriate behavior towards female students.
The teacher, who rejected the employer’s settlement offer, filed a duty of fair representation complaint against his union after it refused to take the case to arbitration.
The union then offered the teacher the same settlement the employer did. The Alberta Labour Relations Board gave him two options: accept the settlement, or it would dismiss his case under a “relatively” new section of the Labour Relations Code.
Background
KH was a welding instructor at the Northern Alberta Institute of Technology (NAIT). When he was terminated in October 2021, he was 53 and had been on the job for 15 years.
He was a unionized worker represented by the Northern Alberta Institute of Technology Academic Staff Association (NAITASA).
There was no discipline on his file at the time he was let go, but he did have a letter of expectations from February 2021 regarding his communication with students and colleagues.
In the spring of 2021, NAIT became aware of eight incidents involving KH’s interactions with three female students. It conducted an internal investigation, and concluded he had committed several acts of misconduct.
KH denied several of the allegations, and offered explanations and context for the others. NAIT terminated his employment on Oct. 6, 2021. KH grieved the termination on Oct. 18, 2021.
The union engaged in settlement discussions with NAIT. NAIT took the position that this was a case of “a male instructor in a trades program, (who) talked about sex and sexual behaviour with students in an industry where females are traditionally underrepresented.” Termination, in its opinion, was “fit and just.”
NAIT said if students saw this conduct from an instructor, it would suggest it was normalized or expected in the industry.
Offer to settle
NAIT offered to settle with KH solely to avoid the costs of a hearing. The union, during the settlement discussions, obtained two legal opinions from its counsel.
The first, dated Jan. 14, 2022, concluded NAIT would likely be able to establish most of the allegations against KH. The real issue, then, would be whether or not termination was the appropriate penalty. It cautioned that a lesser penalty was not guaranteed at arbitration.
KH told his union he did not want to return to NAIT. The second, dated May 18, 2022, confirmed he did not want to return but instead sought financial compensation of 52 weeks’ salary consistent with the collective agreement’s severance provisions. That opinion concluded: “I have little optimism regarding the success in this grievance and, ultimately, could not recommend that it proceed to arbitration.”
The union obtained the best offer it could from NAIT, it said. It presented that offer to KH in the presence of its legal counsel, who explained his opinions, but KH ultimately rejected it. The union then concluded there was no basis to proceed to arbitration, and it withdrew the grievance.
In response, KH filed a duty of fair representation (DFR) complaint against his union.
The Rurka case
NAIT and its union had been through a very similar case in 2021 and 2022, known as the Rurka case. In that case, the employee was fired in 2019 for allegedly sexually harassing female co-workers.
With one exception, that case involved verbal comments — the exception being when he hugged a female co-worker from behind. Rurka was 57 and had been on the job for 23 years at the time of termination with no prior discipline on file.
The arbitrator upheld the termination for cause in that case. Despite a lengthy service, and clean record, it ruled it was not prepared to reduce the penalty.
That ruling, which came out while the issue with KH was being sorted out, hardened the employer’s stance and worsened the union’s opinion of the possible outcome of arbitration should it proceed.
The union’s settlement offer
The union offered to pay KH the same sum that NAIT had offered to settle the DFR case.
The Alberta Labour Relations Board noted that, to achieve his wish for 52 weeks’ severance, KH faced a couple of hurdles. First, there was a risk the arbitrator would rule he was dismissed for cause, meaning he would be entitled to zero financial compensation.
Second, the arbitrator could decline to award any financial compensation or an award much smaller than one year’s pay if it ruled termination was excessive.
The board noted the Rurka case was “very relevant” to these issues since it was a recent case between the same employer and bargaining unit with significantly similar facts. It made it “unlikely” KH would receive anything close to 52 weeks’ salary if it went to hearing.
The payment of any amount to KH would “probably’ represent a better outcome than going to arbitration, it said.
“An arbitrator might see making comments to students, especially female students in a traditional male industry, as an aggravating factor,” it said. “It is of course impossible for this Board to say precisely how an arbitrator would have ruled on the… grievance if it went to hearing.”
It ruled the amount offered to KH by the union was “fair and reasonable.” It gave him two weeks to advise the board and the union whether he accepts or rejects the settlement proposal. If he accepts, the complaint will be resolved.
If he rejects, the board said it would summarily dismiss KH’s DFR complaint pursuant to section 153(3.1) of Alberta’s Labour Relations Code.
Section 153 is a relatively new section of the code that is designed to ensure complaints “need not proceed to hearing where the complainant would be reasonably compensated for the complaint.”
For more information, see Homeniuk v The Northern Alberta Institute of Technology Academic Staff Association, 2023 CanLII 41889 (AB LRB)
