The Government of Yukon’s Respectful Workplace Policy and its collective agreement with the Public Service Alliance of Canada (PSAC) came under scrutiny after a policy grievance was filed by the union, contesting how far the policy’s “disrespectful conduct” clause could stretch.
An arbitrator allowed the grievance in part, confirming that discrimination, harassment, and abuse of authority fall under the umbrella of “disrespectful conduct.” However, the arbitrator also found that only investigation findings resulting directly in discipline carry binding effect in any subsequent grievance.
Termination after investigation
The policy grievance originated in a broader dispute involving a bargaining unit member, Y.M., who was terminated after an external investigator upheld multiple allegations of bullying and harassment against him. The employer took the position that an adjudicator should be bound by the investigator’s findings — including findings related to discrimination — when reviewing discipline.
The union argued that discrimination was a separate legal matter not automatically covered by “disrespectful conduct.”
In addressing these opposing views, the arbitrator interpreted section 7.3 of the Respectful Workplace Policy, which states: “Any findings of fact or of disrespectful conduct made by an external investigator will be treated as final and binding in any grievance or appeal of discipline arising from a finding of disrespectful conduct under this policy.” The main question was whether “disrespectful conduct” included harassment, abuse of authority, and discriminatory behaviour, and whether an adjudicator’s hands were effectively tied on any aspect of those issues.
Background on the policy and collective agreement
The collective agreement between the Government of Yukon (the employer) and the union incorporates the Respectful Workplace Policy by reference. Clause 6.02 of the collective agreement provides that the policy “will form part of this Collective Agreement and includes the following definitions.” It sets out “disrespectful conduct” as “behaviour by an individual directed against another individual that a reasonable person would consider disrespectful,” while separately defining “discriminatory conduct” as unfavourable treatment on any ground under Yukon’s human rights legislation.
However, the version of the policy in force lists examples of “disrespectful conduct,” including bullying, abuse of authority, and “discriminatory conduct contrary to the Yukon Human Rights Act.” Section 7.3 then stipulates that investigators’ findings of fact or disrespectful conduct are “final and binding” in grievances about discipline flowing from those findings.
The union argued that the policy’s own definitions were superseded by the narrower collective agreement language, which lists “disrespectful” and “discriminatory” conduct separately. In its view, references in the policy to binding “disrespectful conduct” could not be extended to discrimination. The employer countered that, even if certain definitions appeared in two slightly different forms, the overall context showed the parties intended to treat harassment and discrimination as forms of disrespectful conduct.
Parties’ positions
Union’s perspective: The union asserted that discrimination entails a legal assessment rather than a mere finding of fact. It argued that section 7.3 of the policy was confined to findings of “fact or of disrespectful conduct” and that “discriminatory conduct” was not covered because the collective agreement explicitly separated the two concepts. The union also insisted that only the investigatory report that led directly to the discipline at issue should carry binding force. If another report did not result in discipline, it should not bind an adjudicator in a subsequent grievance.
Employer’s response: The employer argued that the policy’s definition of “disrespectful conduct” unequivocally included “abuse of authority,” “bullying,” and “discriminatory conduct.” According to the employer, the union itself had agreed to multiple rounds of collective bargaining incorporating this policy language, demonstrating an intention to handle serious workplace conflicts through external investigations whose findings would be final. The employer maintained that “section 7.3 … is in fact very clear language” and that the arbitrator need only give effect to it.
On the question of multiple investigation reports, the employer took the view that all findings of fact or disrespectful conduct relevant to the discipline — regardless of which report they appeared in — could bind the adjudicator, so long as they pertained to the incidents leading to disciplinary action.
The arbitrator’s findings
After applying standard principles of collective agreement interpretation, the arbitrator concluded that:
Discrimination, harassment, and abuse of authority are captured by “disrespectful conduct.” The decision states that while the policy text can appear “clumsy and inconsistent,” the parties intended to treat discrimination as a form of disrespectful behaviour. The arbitrator found it “absurd” to suggest the parties specifically carved out harassment or discrimination from the policy’s binding nature when the definitions strongly overlap: “Discriminatory conduct is inherently disrespectful conduct … whether or not it is explicitly listed in a definition.”
Binding effect applies only to discipline flowing directly from a finding of disrespectful conduct. The arbitrator emphasized that section 7.3 “does not distinguish between different ‘reports’ … It specifies that findings of fact or disrespectful conduct … are binding only to the extent of ‘discipline arising from a finding of disrespectful conduct.’” Consequently, if an investigation report does not result in discipline, “section 7.3 of the Policy has no effect.”
While the arbitrator confirmed an investigator’s findings could limit some factual disputes in a disciplinary grievance, the decision did not remove an adjudicator’s authority to review whether a penalty itself was discriminatory or otherwise unjust. Nothing precludes an adjudicator from considering whether the termination or suspension imposed was tainted by discrimination, provided that the factual findings of disrespectful conduct themselves are not re-litigated.
In closing, the arbitrator wrote: “I allow the policy grievance in part. First, … I find that the scope of the term ‘disrespectful conduct’ … includes harassment, abuse of authority and discriminatory conduct. Second … where those findings do not result in discipline, s. 7.3 of the Policy has no effect.”
For more information, see Public service alliance of Canada v Yukon, 2024 CanLII 134968 (YT TLRB).
