Determination of how close harasser can work with victim related to collective agreement's safe workplace provision
Where a doctor has sexually harassed a nurse, a labour arbitrator has authority to decide how close the doctor should be able to work with the nurse, and under what conditions, an Ontario arbitrator has decided.
The nurse claimed that she was sexually harassed by the doctor. The hospital stripped the doctor of his privileges so that he could not, at present, practise at the hospital. The union brought a grievance on behalf of the nurse, claiming relief including an assurance from the hospital "that Dr. G. will not be allowed to return to the workplace." The hospital and the doctor claimed that the arbitrator had no authority to order that relief.
The arbitrator decided that he had jurisdiction to determine the essential question: how close the doctor should be able to work with the nurse, and under what conditions. That was a labour relations question arising directly from the collective agreement which guaranteed a safe workplace free from harassment.
The arbitrator held that although the Health Professionals Appeal and Review Board had exclusive jurisdiction over the doctor’s privileges at public hospitals, the arbitrator had authority to determine how close the doctor should be to the nurse in the workplace. This may involve a decision on whether the nurse and doctor should work at different sites or in different locations, and whether the doctor should work at the hospital at all when the nurse is working there.
For more information see:
• William Osler Health System and ONA (G. (N.)), Re, 2013 CarswellOnt 15652 (Ont. Arb.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.
