Can you transfer a unionized employee for disciplinary reasons?

In a recent Labour Arbitration matter, Toronto District School Board v Canadian Union of Public Employees, Local 4400,2018 CanLII 67327 (ON LA), the Arbitrator considered whether involuntarily transferring an employee was an appropriate response.

The Arbitrator commented that trrasnfering an employee would be approapite in a scenario where there are “cogent and compelling reasons” such as, “an Employer’s obligation to provide a harassment-free workplace.”

“In particular, there may be circumstances associated with harassing and intimidating behaviour that an employee has taken part in, that suggest it is reasonable for, if not incumbent upon, the Employer to involuntarily transfer and/or prevent/preclude an employee from working at a particular work location.”

With respect to the specific issue in the arbitration matter, the Arbitrator concluded it was reasonable for the employer to move the griever for disciplinary purposes given the relevant circumstances.

“In a relatively short period of time (two months), the grievor’s behaviour had been the source of considerable disruption for the caretaking staff at Don Mills; and significantly involved serious harassment allegations towards certain employees. Ms. Merali had, at that time, only recently transferred out of Don Mills; accordingly, the “dust was far from settled” in terms of the disruptive impact that the behaviour of the grievor had upon the caretaking staff at that location. That the grievor and the custodial staff at Don Mills, at that point, would need a “breather” from each other was more than reasonable in the circumstances."

“Finding that the transfer of the grievor out of Don Mills at that time was reasonable, the Employer’s subsequent decision to deem the grievor disqualified with respect to the March 1, 2016 posting for the Shift Leader position at Don Mills makes sense since that posting arose directly because of that disciplinary transfer.”

The Arbitrator did, however, note other considerations when moving an employee on the basis of discipline in a unionized environment.

“There is, however, one aspect of the discipline issued to the grievor that gives reason for pause. The exercise of seniority by an employee to obtain a position at a particular location is an important right provided for under the collective agreement that should be generally respected. Whether because of geographic proximity, perceived favourable working conditions or overtime opportunities, a particular work location may be particularly attractive to an employee such that the employee will exercise his/her seniority to obtain that position. Generally, in this regard, there must be fairly cogent and compelling reasons for the Employer to be entitled to permanently transfer an employee out of a position for disciplinary reasons and/or to suggest an employee cannot be a candidate for a position at a particular work location.”

This decision suggests that despite seniority rights, an employee can be moved with cause when there are cogent and compelling reasons.