Beruflich Dokumente
Kultur Dokumente
BETWEEN:
BROCK UNIVERSITY
("the University")
AND:
SOLE ARBITRATOR:
Kevin M. Burkett
This grievance challenges the July 30, 2018 decision of the University to cancel
Professor David Schimmelpenninck's teaching assignments for the fall 2018 term and
to prohibit him from working with graduate students also during the fall 2018 term.
two history courses in the fall 2018 term. The July 30, 2018 letter so advising
into sexual harassment that was alleged to have taken place on October 21, 2014.
Following the imposition of the discipline, which included a suspension without pay
until June 30, 2016, Professor Schimmelpenninck had been on an enforced leave of
the classroom was not until the fall of 2018. To the extent that there had been
return to the classroom, these concerns related to his 2014 sexual harassment.
Brock University takes the position that its decision to cancel Professor
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response to the concerns expressed and possible public scrutiny of his return to the
classroom. It argues that it acted under its management rights and, in particular, its
authority under article 24.03(d), Workload for Faculty Members. The Association, on
the other hand, asserts that the University's decision to rescind Professor
additional ex post facto discipline in response to his 2014 sexual harassment. There is
DELIVERED BY HAND
March 8, 2016
2
As you know, a complaint was made against you pursuant to the
Respectful Work and Learning Environment Policy (the "RWLEP"),
which alleged that you had contravened the RWLEP by engaging in
sexual harassment. More specifically, a former graduate student
complained that during a meeting in your office in the early morning of
October 21, 2014, you engaged in conduct involving an unwelcome
sexual advance, inappropriate and unwelcome physical touching,
comments of a sexual nature, a provocative comment attempting to
arrange ongoing intimacy, and comments relating to how you would
characterize the matter should you be questioned about same.
In her final report, the investigator concluded that you engaged in sexual
harassment by having engaged in the conduct referenced above and that
you therefore violated the RWLEP. The investigator recommended that
procedures be initiated that could result in disciplinary action. To that
end, you received a letter dated February 26, 2016 which referenced the
investigator's final report and invited you to provide a response to the
University.
3
Consequently, the University has decided to impose the following
disciplinary penalty in response to the misconduct described above.
4. During your suspension and paid leave of absence, you are not to
attend the University campus unless you have requested and
received written decanal approval to do so.
The University expects that you will refrain from engaging in the
misconduct that has resulted in this discipline. It must emphasize that
your failure to do so may result in the imposition of further discipline up
to and including your dismissal for cause.
Sincerely,
c: Francine McCarthy
Personnel File
4
On November 10, 2016, the Dean of the Faculty of Humanities wrote to
follows:
5
suggest you do not appreciate the gravity of your
behaviour. You should be aware that serious reservations
have been expressed by both faculty and students on
campus about your return to work. I note again that the
University has a duty to provide a safe work and learning
environment.
Carol U. Merriam
Dean, Faculty of Humanities
The imposition of these conditions was grieved and the letter rescinded.
On July 30, 2018, the Interim Provost and VP Academic wrote to Professor
Schimmelpenninck advising that the courses to which he had been assigned to teach
6
July 30, 2018
I am writing to inform you that the University has decided to cancel your
teaching assignment for the Fall term. You were currently slated to teach
the following courses:
HIST 2P98
HIST 3P90
Please also be advised that you are not permitted to work with graduate
students during the Fall term.
7
cc: Dr. Michelle Webber, President, Brock University Faculty
Association
Dr. Carol Merriam, Dean, Faculty of Humanities
Jennifer Guarasci, Acting Associate Vice-President, Human
Resources
The relevant provisions of the collective agreement are set out below:
8
expectations of the Agreement in the area of
research/scholarly/creative activities for the previous three
(3) years, the Dean in consultation with the faculty member
may propose an increase in the teaching portion of
workload to 3.0 full courses or equivalent. Any such
alteration shall be recorded in writing, and a copy shall be
given to the member, the Chair/Director and the Union.
This change in workload distribution shall be reflected in
the Annual Workload Plan (AWP, described in Article
24.05) with respect to duties and responsibilities assigned.
9
SUBMISSIONS
ASSOCIATION
Schimmelpenninck's fall 2018 teaching assignments consisted discipline such that the
University bears the legal onus, the Association agreed to argue first. The position of
in March 2016 in response to his October 21, 2014 sexual harassment, imposed
additional discipline in July 2018 when it rescinded his fall 2018 teaching
assignments. Renfrew County Catholic District School Board and OECTA (2008) 173
LAC (4th) 326 (Swan) and ONA and Thunder Bay Regional Health Sciences Centre
(2012) CanLII 100762 (Cummings) are cited in support of its proposition that the just
twice for the same offence. In other words, it is submitted that the just cause provision
protects an employee from "double jeopardy." The Association maintains that the
July 2018 was to impose an additional penalty and, therefore, constituted a second
In anticipation of the University arguing that it acted under its right to assign
workload and that absent any loss of salary or disciplinary notation its July 2018
10
takes pride in his teaching, which is identified as a core responsibility, such that,
regardless of the fact that he remained on full salary and that there was no reference to
discipline in the July 30, 2018 letter rescinding his fall 2018 teaching assignments, he
was nevertheless disciplined. Renfrew County Catholic District School Board (supra)
and Board of Governors of the Riverdale Hospital and CUPE, Local 79 (2000) 93
LAC (4th) 195 (Surdykowski) are cited in support. To the extent that the award of Prof.
McLaren in re: University of Windsor and Faculty Association (2005) 129 LAC (4th)
285 supports a contrary result, the Association argues that that award was wrongly
decided.
in breach of article 24, Workload. It is argued that because article 24 stipulates that
consultation with the faculty member and because there was no such consultation, the
Queen's University and QUFA (Mercier) October 5, 2016, unreported (Burkett), the
Association argues that the University cannot rely on its right to assign work under
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UNIVERSITY
The University relies on its right under article 24 to assign work and in this
regard submits that the context within which it exercised its right to rescind Professor
acted within its article 24 rights. The context, the University submits, is that Professor
attention that resulted in concerns being raised within the University community with
members and some students, albeit primarily in 2016, and that in January 2017
basis (see para. 37, Statement of Agreed Facts). It is argued that within this context
return to the classroom by exercising its article 24 right to alter his teaching load. It is
were both media inquiries and faculty concerns about his return such that, it is argued,
on a balancing of interest it was entitled to act under article 24. USW and Algoma
Steel Corp. (1968) 19 LAC 236 (Weiler) and Elgin County and SEIU (2015) 249 LAC
(4th) 127 are cited in support of the proposition that in all the circumstances it properly
12
In response to the argument that Professor Schimmelpenninck was subjected to
double jeopardy, the University argues that on the evidence it is clear it did not act to
made to the University of Windsor Award (supra) of Prof. McLaren in support of the
proposition that where, as here, "the action was meant to be prophylactic and
(and where) there was no restriction and no adverse employment effect in respect of
the employment record, pay or job classification," the University action is not
disciplinary in nature. Allied Systems (Canada) Company and Teamsters, Local 938
(1999) OLAA No. 956 (Hinnegan), James Stead, etc. and Correctional Service of
Canada (2012) 2012 CarswellNat 3393 (Steeves) and Ryerson University and Ryerson
Faculty Association (2018) unreported (Sheehan) are cited in further support of the
assignments did not constitute discipline and, therefore, did not constitute double
jeopardy.
ASSOCIATION REPLY
The Association argues in reply, firstly, that the University did not act under
should a dean wish to redistribute the workload functions of a faculty member. The
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drawn between the imposition of a suspension, etc. pending an investigation, as in re:
Ryerson (supra) and Allied Systems (supra) and what occurred here where the
discipline has been imposed, the Employer cannot revisit the same misconduct at a
DECISION
The starting point here must be the March 8, 2016 letter from the Interim Dean,
records the fact of the complaint, the independent investigation and the conclusion of
The details are not relevant. What is relevant is that the letter then states that "the
University has decided to impose the following disciplinary penalty in response to the
misconduct described above." (emphasis added) The letter goes on to advise Professor
Schimmelpenninck that:
Graduate Studies;
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• he is being provided a further leave with pay until December 31, 2016 for the
• he is being banned from campus until December 31, 2016 unless he requests
The letter concludes with a warning that a failure to refrain from engaging in the
misconduct that has resulted in "this discipline" may result in "further discipline up to
and including discharge." Clearly, although there was some sensitivity to his alcohol
abuse, Professor Schimmelpenninck was disciplined on March 8, 2016 for the sexual
The case law emphatically stipulates that the requirement for "just cause" does
not allow an employer to discipline twice for the same offence (see re: ONA and
Thunder Bay Regional Health Services (supra), Renfrew Country Catholic District
School Board (supra) and leading cases on Labour Arbitration (2nd) Lancaster House,
Section 10.5 page 10.30 to 10.33). The purpose of the double jeopardy prohibition is
would be in the best interest of sound labour relations. It is to be noted that, consistent
with the need to fully investigate before acting (as was done here in 2016), the case
(see re: Ryerson University (supra) and St. James Assiniboia School and Teachers'
15
Association (2014) 244 LAC (4th) 361 (Peltz)). In this case, Professor
Article 24.03(d) states that "a Dean, in consultation with the faculty member,
may decide on occasion that there are good reasons for altering the normal
activities and service." The University maintains that it acted under its article 24.03(d)
authority and not to discipline Professor Schimmelpenninck when it rescinded his fall
2018 teaching assignments. These assignments had already been made. While there is
no issue with respect to the right of an employer to determine the type and volume of
work to be done and to create or eliminate jobs (see re: Elgin County and SEIU
(supra) and USWA and Algoma Steel (supra)) and, in this case, the right of this
University to act under article 24.03(d), its actions cannot be for the purpose of
discipline has already been imposed for this same misconduct. Accordingly, to repeat,
a determination must be made as to whether the University acted in the exercise of its
Schimmelpenninck a second time for the same offence, i.e. the sexual harassment in
dissimilar to this, that the Association asserts was wrongly decided, arbitrator
16
McLaren found on the facts before him that the university's decision to remove a
faculty member from teaching in the next term was within its right to manage and not
other constituent members of the university community (and) there was no retribution
and no adverse employment effects in respect of the employment record, pay or job
classification." In that case, the grievor had been involved in numerous incidents with
both students and other faculty members in the immediately preceding few months. In
essence, it was found that the time away from teaching was not designed to discipline
but rather to give the grievor an opportunity to confront her emotions and at the same
time to provide a cooling-off period within the department. On the facts before him, I
am not prepared to find that arbitrator McLaren wrongly decided the University of
The context here is markedly different. The University had already investigated
significant disciplinary response contained in its March 8, 2016 letter. Everything that
followed (the November 10, 2016 letter imposing additional conditions that was
possibility of him retiring and the July 30, 2018 letter) related back to the October 21,
2014 sexual harassment. When viewed in this context and in the absence of there
17
being any evidence that Professor Schimmelpenninck's teaching was itself
substandard and in the absence of the type of consultation required under article
24.03(d) as a precondition to determining that there is good reason for altering the
workload proportions, it is difficult to conclude that the University acted under article
24.03(d). Rather, when reference is had to the context and to the penalizing effect of
Renfrew County Catholic District School Board and OECTA (2008) 173 LAC (4th)
326 (Swan)), the inescapable conclusion is that the July 30, 2018 cancellation of
response to his October 21, 2014 sexual harassment and not a legitimate exercise of
the University's right to alter the workload proportions under article 24.03(d). Absent
any additional misconduct (of which there has been none that we were made aware
of), the University could not in 2018 impose additional discipline in response to
Apart from the unenforceability under the collective agreement of any agreement with
an individual faculty member, the fact is that when account is taken of Professor
18
Schimelpenninck's enforced leave until December 31, 2016 and his subsequent
sabbatical, his return to the classroom in September 2018 would have been on a
graduated basis.
Nothing in this award should be taken as speaking to the level of vigilance that
the University may exercise going forward. However, for the reasons given, this
the teaching load that he otherwise would be assigned commencing winter 2019.
I remain seized.
Kevin Burkett
KEVIN BURKETT
19
APPENDIX ‘A’
Introduction
The Grievance
5. On July 31, 2018 the Association brought a grievance regarding the above
decision. The Association alleged that this action on the part of the University
was an inappropriate use of management rights and an inappropriate imposition
of discipline and was in violation of Articles 3, 7, 9 and other articles of the
Collective Agreement. A copy of the Grievance Form is attached.3
7. The student brought this complaint to the attention of the University’s Office of
Human Rights and Equity Services on September 24, 2015.
8. The University’s Respectful Work and Learning Environment Policy (the “Policy”)
outlines the procedures for responding to allegations of discrimination,
harassment and bullying at the University. A copy of the Policy that was in effect
at the time is attached.4 In accordance with the process outlined therein, the
University concluded that the allegations brought forward by the student were of
such a nature that it was necessary to appoint an external investigator to address
the complaint. The Policy includes a Confidentiality provision (section 19).
a violation of the Policy had occurred. A copy of the final report was provided to
the student and Professor Schimmelpenninck on January 11, 2016.
10. Following the release of this report, the University contacted Professor
Schimmelpenninck on February 26, 2016. The University requested that
Professor Schimmelpenninck provide a response to the Report for its
consideration. A copy of the February 26, 2016 letter from the University is
attached.5
12. Based on the conclusions and recommendations set out in the External
Investigation Report and Professor Schimmelpenninck’s response, the University
decided that disciplinary action was justified. The University also advised
Professor Schimmelpenninck that the BUFA collective agreement did not apply
because he was currently appointed to an administrative position that was
outside the scope of the BUFA collective agreement.
(b) suspended without pay, effectively immediately, until June 30, 2016;
(c) provided with a further paid leave of absence until December 31, 2016 to
ensure that he has sufficient time to continue his treatment for the severe
-4-
14. A copy of the March 8, 2016, disciplinary letter is attached.7 In addition to what is
set out above , the University advised Professor Schimmelpenninck that he was
to refrain from engaging in the misconduct that had resulted in this discipline and
that his failure to do so could result in the imposition of further discipline, up to
and including dismissal for cause. No grievance was filed because Professor
Schimmelpenninck was in a position outside of the bargaining unit.
15. On February 23, 2016, the University President, Jack Lightstone, was contacted
by a reporter from CBC News. He was informed that CBC was aware of a
complaint brought forward by a graduate student alleging sexual harassment
against Professor Schimmelpenninck and that CBC News was preparing a story
regarding the University’s response to these allegations.
16. The CBC News article was released on March 11, 2016 and was subsequently
picked up by numerous local and national media outlets. The article set out the
student’s allegations against Professor Schimmelpenninck which he considered
misleading and sensational. The CBC News article also noted that the complaint
had been investigated, that the investigation had concluded that Professor
Schimmelpenninck had engaged in misconduct. A number of members of the
University’s community (e.g. a member of the Canadian Federation of Students,
the Co-ordinator for the Student Sexual Violence Support Centre) were quoted in
the article raising concerns about the adequacy of the University’s response and
the lack of transparency and accountability. A copy of the CBC News article
-5-
titled “Brock University tells student to keep quiet about sexual harassment
finding” is attached.8
17. On the same day, the President released an article in the Brock News. He
emphasized that the University took complaints of sexual harassment seriously
and that a Sexual Violence Prevention Committee had been created that would
work to develop a new policy for dealing with sexual violence awareness,
prevention and responses within the University. A copy of the Brock News article
titled “A message from Brock President Jack Lightstone” is attached.9 Copies of
the articles referencing this CBC News article are also attached.10
18. Another CBC News Article was published on March 12, 2016. This article
highlighted the response of students to the initial article and the University over
its handling of the allegations and the investigation. A copy of the CBC News
article titled “Brock University students angered by handling of sexual
harassment case” is attached.11
20. A follow-up article was published in the Brock News on March 14, 2016. The
President reiterated the University’s commitment to addressing issues of
harassment. He encouraged anyone who had experienced harassment to report
such incidents to Campus Security, the Brock Sexual Violence Support Centre or
the Office of Human Rights and Equity. A copy of the Brock News article titled
“Lightstone urges Brock community to report harassment” is attached.13
-6-
21. Following the release of the March 11, 2016, CBC News article there was on
March 15, 2016 a public demonstration held on campus, which included faculty
and staff and over 60 students. The students who were demonstrating were
calling for a number of changes to the University’s processes to foster a safer
and more accountable culture at the University. They also demanded the
resignation of Professor Schimmelpenninck and the University administrators
who had handled the complaint. A copy of a follow up CBC News Article outlining
these demands titled “Brock University students demand resignations in sexual
harassment case” is attached.14 A similar article covering the protests was also
published in the Brock News and is attached.15
22. The President also received an open letter with signatures from over 70
community members criticizing the University’s response and calling for a more
survivor-centred approach to such accusations. A copy of the article titled “Brock
University faculty demand changes to sexual harassment policies” and a copy of
the Open Letter to the President dated March 16, 2016 are attached.16
23. On March 18, 2016, the President wrote another article in the Brock News
informing the community that the University was taking steps to review and
update their procedures for dealing with matters of sexual harassment and
violence. He also announced the introduction of a Presidential Task Force to look
at the University’s policies and procedures dealing with incidents of sexual
harassment, sexual violence and unprofessional behavior.
24. The President also noted that the University would be hiring a new Sexual
Violence Response Coordinator who would work with the Human Resources and
Equity Officer to provide a central point of contact for all complaints about sexual
violence and harassment at the University. A copy of the Brock News article titled
“A letter to the Brock Community from Jack Lightstone” is attached.17
25. In addition, an article was published in the Brock News on April 8, 2016 providing
an update on the Human Rights Task Force and outlining its mandate to make
recommendations in an effort to improve and advance human rights at the
-7-
University. A copy of the Brock News article titled “More details emerge for
Human Rights Task Force” is attached.18
26. On April 14, 2016, the Niagara Falls Review published an exclusive interview
with Professor Schimmelpenninck regarding these allegations. In the article he is
quoted denying the accusations. Professor Schimmelpenninck also commented
on a second accusation that had been made public. That second accusation, by
a different student, had been investigated by an independent third party and was
found to be unsubstantiated. A copy of the Niagara Falls Review article titled
“Brock prof breaks silence” is attached.19
27. This prior accusation against Professor Schimmelpenninck was also the subject
of a second CBC News Article, which provided more details on the complaint and
the independent third party’s finding of a lack of evidence to support the claim. A
copy of the CBC News article titled “Brock University faced earlier sex assault
complaint involving history professor” is attached.20
28. The University had been working to develop a new Sexual Assault and
Harassment Policy. As a result of the continued concerns expressed by faculty
and students and the need for clearer processes and procedures, the University
experienced an influx of community participation in the development and
implementation of the new Policy. A copy of the Sexual Assault and Harassment
Policy is attached.21
(b) provide medical confirmation from his treating physician confirming his
fitness to return to work; and
(c) take and successfully complete sensitivity and human rights awareness
training.
31. The November 10, 2016 letter also mentioned that serious reservations had been
expressed by both faculty and students on campus about Professor
Schimmelpenninck’s return. The letter referred to public comments made by
Professor Schimmelpenninck since the imposition of the discipline. A copy of the
November 10, 2016 letter is attached.22
32. Around this time, the Association and Professor Schimmelpenninck were also
informed that the University would be conducting an informal health and safety
review of the work and learning environment in the University’s History
Department. This review would be conducted jointly by the Office of Human
Rights and Equity Services and Health, Safety and Wellness. The review was
intended to assist the University in ensuring that it was meeting its duty to
provide a safe and harassment-free workplace.
33. On November 16, 2016 the Association brought a grievance regarding the
November 10, 2016 letter. They alleged that it was an imposition of unreasonable
discipline and therefore violated Article 9 (Discipline) of the Collective
Agreement. A copy of the Grievance Form is attached.23
-9-
34. The matter was resolved between the parties on December 9, 2016 and the letter
from the University was rescinded.
37. During the week of January 9, 2017, Ms. Herman met with various stakeholders,
including Professor Schimmelpenninck, Jennifer Guarasci, Director, Faculty and
Employee Relations and Nancy Taber to discuss Professor Schimmelpenninck’s
return to work. She communicated the University’s concerns regarding his being
on campus and interacting with students and other faculty members. Over the
course of these discussions, Professor Schimmelpenninck agreed to eliminate all
socializing with students on or off campus, to limit all meetings with students to a
public forum and to coordinate with the administration to develop a response to
inquiries made about his return. He also agreed to make his return to campus on
a graduated basis.
38. On January 11, 2017, Ms. Herman met with the faculty members of the
Department of History. Some continued to express concerns about Professor
Schimmelpenninck’s behavior, his being in the classroom and the conflict that
may arise within the Department.
that the University had implemented in response to this incident. A copy of this
joint statement is attached.24
40. On May 10, 2018, Ms. Guarasci met with Professor Schimmelpenninck and
Michelle Webber via video conference to discuss his anticipated return to the
University. Ms. Guarasci emphasized that despite the University’s efforts to ease
Professor Schimmelpenninck’s transition back to work, some faculty and staff
remained concerned. In addition, Ms. Guarasci indicated that the media
continued to be interested in Professor Schimmelpenninck’s anticipated return to
teaching. After discussing some of the challenges and the pressures that
Professor Schimmelpenninck would face upon his return, Ms. Guarasci indicated
that the University would be open to discussing ideas to resolve the situation,
including a discussion with Professor Schimmelpenninck about the potential of
his retirement.
41. Professor Schimmelpenninck stated that the University had failed in its obligation
to protect him and that it had not made appropropriate efforts to correct any
inaccuracies in the facts reported by the media. Professor Schimmelpenninck
indicated that he intended to remain working for the University for many years to
come.
discipline letter and that no further discussions on this issue were necessary. A
copy of Professor Schimmelpenninck’s email dated July 9, 2018 is attached.26
44. Professor Schimmelpenninck returned from his sabbatical on July 1, 2018, and
was scheduled to teach in the Fall term, commencing September 1, 2018. On
July 10, 2018 the University became aware of a Facebook group message
thread among a number of the University’s students. The thread addressed
issues of sexual harassment at the University and specifically referenced
concerns among students about Professor Schimmelpenninck’s return to
campus. A copy of this group message thread is attached.27
46. The University responded to the grievance on September 6, 2018 denying the
grievance. It was the University’s assertion that the July 30, 2018 letter was not
disciplinary, nor was the cancellation of his classes or the removal of access to
graduate students. A copy of the University’s response is attached.28
- 12 -
Index
1
Professor Schimmelpenninck’s CV and list of teaching experience
2
Letter from the Provost to Professor Schimmelpenninck dated July 30, 2018
3
Grievance Form dated July 31, 2018
4
The University’s Respectful Work and Learning Environment Policy
5
Letter from the University to Professor Schimmelpenninck dated February 26, 2016
6
Letter from Professor Schimmelpenninck dated March 2, 2016
7
Disciplinary letter dated March 8, 2016
8
CBC News article titled “Brock University tells student to keep quiet about sexual
harassment finding”
9
Brock News article titled “A message from Brock President Jack Lightstone”
10
The Varsity article titled “Swept under the rug”
11
CBC News article titled “Brock University students angered by handling of sexual
harassment case”
12
Correspondence from Faculty members to Brock President Jack Lightstone
13
Brock News article titled “Lightstone urges Brock community to report harassment”
14
CBC News article titled “Brock University students demand resignations in sexual
harassment case”
15
Brock News article titled “Protesters demand changes to Brock University’s sexual
violence policy”
16
Open letter to the President dated March 16, 2016
17
Brock News article titled “A letter to the Brock Community from Jack Lightstone”
18
Brock News article titled “More details emerge for Human Rights Task Force”
19
Niagara Falls Review article titled “Brock prof breaks silence”
20
CBC News article titled “Brock University faced earlier sex assault complaint
involving history professor”
21
Sexual Assault and Harassment Policy
22
Letter from Dean, Faculty of Humanities to Professor Schimmelpenninck dated
November 10, 2016
23
Grievance Form dated November 16, 2016
24
Brock Statement regarding D. Schimmelpenninck’s return to work dated January
2017
25
Email from Jennifer Guarasci to David Schimmelpenninck dated July 4, 2018
26
Email from David Schimmelpenninck to Jennifer Guarasci dated July 9, 2018
27
Email from Robert Cargnelli to Jennifer Guarasci dated July 10, 2018
28
Email from Andrea Foster to Nancy Taber regarding Stage One Grievance
Response 0091 dated September 6, 2018