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IN THE MATTER OF AN ARBITRATION

BETWEEN:

BROCK UNIVERSITY
("the University")

AND:

BROCK UNIVERSITY FACULTY ASSOCIATION


("the Association")

IN THE MATTER OF:

GRIEVANCE OF PROFESSOR SCHIMMELPENNINCK

SOLE ARBITRATOR:

Kevin M. Burkett

APPEARANCES FOR THE EMPLOYER:

Michael Kennedy - Counsel

APPEARANCES FOR THE UNION:

James McDonald - Counsel


AWARD

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.

Professor Schimmelpenninck, a tenured history professor, had been assigned to teach

two history courses in the fall 2018 term. The July 30, 2018 letter so advising

Professor Schimmelpenninck explained that there had been "concerns expressed by

members of the University community, many of your peers, members of your

Department, and students about your return to the classroom." Professor

Schimmelpenninck had been disciplined in March 2016 following an investigation

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

absence followed by a prearranged sabbatical, so that his first availability to return to

the classroom was not until the fall of 2018. To the extent that there had been

concerns expressed with regard to Professor Schimmelpenninck's September 2018

return to the classroom, these concerns related to his 2014 sexual harassment.

Brock University takes the position that its decision to cancel Professor

Schimmelpenninck's fall 2018 teaching assignments constituted a non-disciplinary

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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

Schimmelpenninck's fall 2018 teaching assignments constitutes impermissible

additional ex post facto discipline in response to his 2014 sexual harassment. There is

no dispute with respect to my authority to hear and determine this matter.

An agreed statement of agreed facts was tendered that is reproduced as

Appendix "A" to this award.

The relevant correspondence between the University and Professor

Schimmelpenninck is reproduced in full below.

On March 8, 2016, the interim Dean of the Faculty of Humanities wrote to

Professor Schimmelpenninck following the issuance of the report investigating the

alleged sexual harassment, as follows:

DELIVERED BY HAND

March 8, 2016

Professor David Schimmelpennick van der Oye


________________________
________________________
________________________

Dear Professor Schimmelpennick van der Oye,

Re: Suspension – Sexual Harassment

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.

An independent investigator was appointed to investigate this complaint


and you were given the opportunity to participate fully in her
investigation. The investigator prepared a draft report and invited you to
provide your comments prior to its finalization. You were then provided
with the final version of the investigator's report.

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.

You provided your response in a letter to Dean Merriam dated March 2,


2016. In this letter, you first suggested that you did not recall having
engaged in the conduct that formed the basis of the investigator's
aforementioned conclusion. You then denied having engaged in such
conduct altogether. When your latest explanations are viewed against the
totality of the evidence that was obtained by the investigator, her
conclusion that you did indeed violate the RWLEP is affirmed.

The University is obligated to provide a working and learning


environment that is free from harassment, including sexual harassment.
It takes this obligation extremely seriously. When instances of sexual
harassment are substantiated, the University must respond in a way that
makes clear that such misconduct cannot and will not be tolerated.

3

Consequently, the University has decided to impose the following
disciplinary penalty in response to the misconduct described above.

1. You are released from your appointment as Associate Dean,


Graduate Studies and Research, effective immediately.

2. You will be suspended without pay, effective immediately, until


June 30, 2016.

3. You will then be provided with a further paid leave of absence


until December 31, 2016 to ensure that you have had sufficient
time to continue your treatment for the severe drinking problem
that you disclosed in your most recent letter. The University is
pleased that you have begun to attend counselling for this problem
and it remains prepared to offer further assistance through its
Health Management Department, should you so request. We will
require written confirmation from your counsellor that you are fit
to return to work before you resume your duties on campus. Upon
the resumption of your duties, you will be required to limit your
meetings with your students to classroom interactions and
meetings that occur during your regular office hours.
Additionally, you are not to keep or consume any alcohol in your
office at any time.

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,

Carol U. Merriam, Interim Dean


Faculty of Humanities

c: Francine McCarthy
Personnel File

4

On November 10, 2016, the Dean of the Faculty of Humanities wrote to

Professor Schimmelpenninck imposing additional conditions upon a return to work, as

follows:

November 10, 2016

Sent via Registered Mail

Professor David Schimmelpenninck van der Oye


___________________
___________________
___________________

Dear Professor Schimmelpenninck van der Oye:

Re: Follow Up on Possible Return To Work

I am writing as a follow up to my letter of March 8, 2016, in which you


were suspended from work until June 30, 2016, as a result of a finding
that you violated the University's RWLEP policy. In addition, you were
provided with a paid leave until December 31, 2016, to provide you with
an opportunity to seek treatment for your severe drinking problem.

Please be advised that prior to your return to work the University


requires the following:

a) that you have successfully completed a residential


substance abuse recovery program and provide written
proof of your successful completion from the program
sponsor/provider;

b) medical confirmation from your treating physician


confirming that you are fit to return to work;

c) you will be required to take and successfully complete


sensitivity and human rights awareness training. The
University has an obligation under the Occupational Health
and Safety Act to provide a safe work place. Your public
comments since the imposition of discipline strongly

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.

Upon your return to work, you shall be subject to the following


conditions:

d) you must maintain ongoing membership and participation


in an after care program for substance abuse recovery and
shall monthly provide the Employer with written proof
from the program sponsor/provider of your continuing
compliance;

e) you shall not hereafter, at any time, consume any alcoholic


substances whether on or off duty.

Please provide any response or supporting material directly to Jennifer


Guarasci, Director, Faculty & Employee Relations, Human Resources.

Yours very truly,

Carol U. Merriam
Dean, Faculty of Humanities

c: Brock University Faculty Association

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

in the fall of 2018 had been cancelled, as follows:

6

July 30, 2018

Dr. David Schimmelpenninck


_______________
_______________
_______________

Dear Dr. Schimmelpenninck:

Re: Teaching Assignment for the Fall Term

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.

We believe that this decision should not come as a surprise to you.


Recently, there have been discussions between yourself, BUFA and the
administration regarding the concerns expressed by members of the
University community, many of your peers, members of your
Department, and students about your return to the classroom. During the
Fall term the University is going to continue to evaluate and assess the
situation, and will ensure that your BUFA representatives are included in
any discussions that we have with you regarding your return to the
classroom. A decision regarding your Winter term teaching assignments
and access to graduate students will be made during the Fall term.

Thank you for your consideration.

Yours very truly,

Dr. Thomas Dunk


Interim Provost & Vice-President, Academic

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:

9.01 a. Discipline shall be for just cause only.

b. All situations that could result in any discipline against a


member shall be investigated and dealt with in accordance
with this Article.

24.03 Workload Distribution

a. The proportionate distribution of time devoted to the


components of total workload of faculty members shall
normally be 40% teaching, 40% research/scholarly/creative
activities, and 20% service.

b. The distribution of time devoted to these components of


workload may change in accordance with Article 24.03(d),
or in accordance with the terms of other Articles of this
Agreement.

c. The scheduled teaching component of a faculty member’s


workload shall be assigned annually by the faculty
member’s Dean or designate in consultation with the
Department/ Centre in accordance with the provisions of
this Article.

d. A Dean, in consultation with the faculty member, may


decide on occasion that there are good reasons for altering
the normal proportionate distribution of workload, among
teaching, research/scholarly/creative activities, and service.
In particular, in accordance with Article 35.05
(Performance Review), if a Dean concludes that an
individual faculty member’s performance, according to the
criteria in Article 21.06(b), has not been consistent with the

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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.

Should it not be possible for the faculty member and the


Dean to mutually agree on an alteration in workload
distribution, the Dean shall impose the proposed workload
alteration. The Dean shall set out in writing the imposed
terms, with a copy to the member, the Chair/Director, and
the Union.

Subsequent assessment of performance under Article 35


shall be based on the new distribution of workload. If the
faculty member’s performance in the area of research/
scholarly/creative activities continues to be inconsistent
with the expectations of the Agreement, the Dean may
increase the faculty member’s teaching workload to 4.0 full
courses or equivalent.

If the faculty member’s performance in the area of


research/scholarly/creative activities becomes consistent
with the expectations of the Agreement, the faculty
member may elect to return to the normal proportionate
distribution.

9

SUBMISSIONS

ASSOCIATION

Without prejudice to its position that the University's rescinding of Professor

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

the Association is that the University, having disciplined Professor Schimmelpenninck

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

cause provision of a collective agreement does not allow an employer to discipline

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

effect of rescinding Professor Schimmelpenninck's fall 2018 teaching assignments in

July 2018 was to impose an additional penalty and, therefore, constituted a second

discipline for the same October 2014 sexual harassment.

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

rescinding of Professor Schimmelpenninck's fall 2018 teaching assignment cannot be

characterized as discipline, the Association argues that Professor Schimmelpenninck

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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.

The alternative argument advanced by the Association is that the University is

in breach of article 24, Workload. It is argued that because article 24 stipulates that

teaching comprises 40% of a faculty member's workload except as may be altered in

consultation with the faculty member and because there was no such consultation, the

rescinding of Professor Schimmelpenninck's fall 2018 teaching assignments resulted

in a breach of article 24 of the collective agreement. I am asked to so find. Citing

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

article 24 without regard to the purpose for which it is acting.

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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

Schimmelpenninck's fall 2018 teaching assignments supports the conclusion that it

acted within its article 24 rights. The context, the University submits, is that Professor

Schimmelpenninck engaged in a serious sexual harassment that generated public

attention that resulted in concerns being raised within the University community with

respect to Professor Schimmelpenninck's return to teaching, i.e. by some faculty

members and some students, albeit primarily in 2016, and that in January 2017

resulted in Professor Schimmelpenninck agreeing to return to campus on a graduated

basis (see para. 37, Statement of Agreed Facts). It is argued that within this context

the University was entitled to hit "pause" in regard to Professor Schimmelpenninck's

return to the classroom by exercising its article 24 right to alter his teaching load. It is

emphasized that when Professor Schimmelpenninck completed his sabbatical, there

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

rescinded Professor Schimmelpenninck's fall 2018 teaching assignment pursuant to its

authority under article 24.

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

punish or correct but rather to defuse a potentially difficult situation. Reference is

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

protective of the interests of other constituent members of the university community

(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

contention that the rescinding of Professor Schimmelpenninck's fall 2018 teaching

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

article 24.03(d), which establishes the consultative process that is to be followed

should a dean wish to redistribute the workload functions of a faculty member. The

Association argues in reply, secondly, that a clear and critical distinction is to be

13

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

University acted in July 2018 after it had already disciplined Professor

Schimmelpenninck in 2016. Finally, the Association reiterates in reply that once

discipline has been imposed, the Employer cannot revisit the same misconduct at a

later time for the purpose of justifying an additional penalty.

DECISION

The starting point here must be the March 8, 2016 letter from the Interim Dean,

Faculty of Humanities, to Professor Schimmelpenninck in response to his October

2014 sexual harassment. The letter is captioned "Suspension – Sexual Harassment." It

records the fact of the complaint, the independent investigation and the conclusion of

the investigator that Professor Schimmelpenninck had engaged in sexual harassment.

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:

• he is being released immediately from his appointment as Associate Dean,

Graduate Studies;

• he is being suspended without pay until June 30, 2016;

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• he is being provided a further leave with pay until December 31, 2016 for the

purpose of allowing him to continue treatment for a severe drinking problem;

• he is being banned from campus until December 31, 2016 unless he requests

and receives written approval to attend campus.

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

harassment which he engaged in on October 21, 2014.

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

to cause employers, in the interests of fairness and finality, to do a full investigation

before acting. If it were otherwise, employers might be tempted to act precipitously

and affected employees would be in an ongoing state of uncertainty, neither of which

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

law sanctions the suspension of an employee pending the outcome of an investigation

(see re: Ryerson University (supra) and St. James Assiniboia School and Teachers'

15

Association (2014) 244 LAC (4th) 361 (Peltz)). In this case, Professor

Schimmelpenninck was suspended in 2016 not pending an investigation but after

completion of the investigation,

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

proportionate distribution of workload, among teaching, research/scholarly/creative

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

imposing discipline, in response to specific work misconduct in respect of which

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

legitimate authority under article 24.03(d) or whether it acted to discipline Professor

Schimmelpenninck a second time for the same offence, i.e. the sexual harassment in

which he engaged on October 21, 2014.

In re: University of Windsor and Faculty Association (supra), a case not

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

disciplinary because it "was meant to be prophylactic and protective of the interests of

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

Windsor (supra) case.

The context here is markedly different. The University had already investigated

and assessed Professor Schimmelpenninck's 2014 misconduct as warranting the

significant disciplinary response contained in its March 8, 2016 letter. Everything that

followed (the November 10, 2016 letter imposing additional conditions that was

grieved and withdrawn, the concerns expressed by members of the University

community with regard to Professor Schimmelpenninck's 2018 return to the

classroom, the 2018 discussions with Professor Schimmelpenninck about the

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

cancelling Professor Schimmelpenninck's fall 2018 teaching assignments (see re:

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

Professor Schimmelpenninck's fall 2018 teaching assignments, notwithstanding the

absence of other indicia of a disciplinary response, constituted the improper

imposition of additional discipline to that already imposed on March 8, 2016 in

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

Professor Schimmelpenninck's 2014 misconduct in respect of which it had already

investigated and imposed substantial discipline.

To the extent that reliance is placed on Professor Schimmelpenninck's

agreement to "return to campus on a graduated basis," that reliance is misplaced.

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

grievance, challenging the rescinding of Professor Schimmelpenninck's fall 2018

teaching assignments, must be upheld. Professor Schimmelpenninck is to be assigned

the teaching load that he otherwise would be assigned commencing winter 2019.

I remain seized.

Dated this 14th day of December 2018 in the City of Toronto.

Kevin Burkett
KEVIN BURKETT

19

APPENDIX ‘A’

Statement of Agreed Facts

Introduction

1. Professor David Schimmelpenninck is a tenured Professor of History at Brock


University. Professor Schimmelpenninck was hired by the University as tenure-
track lecturer in the Department of History on July 1, 1997. He was promoted to
the rank of Assistant Professor on November 1, 1997, and subsequently granted
tenure and promoted to the rank of Associate Professor on July 1, 2002. He was
appointed a full Professor on July 1, 2008.

2. Professor Schimmelpenninck is an expert in Russian and Inner Asian history. His


research interests focus on Imperial Russian intellectual, cultural and diplomatic
topics. Professor Schimmelpenninck is a highly regarded researcher. He has
written two books, Toward the Rising Sun: Ideologies of Empire and the Path to
War with Japan (DeKalb: Northern Illinois University Press, 2001), and Russian
Orientalism: Asia in the Russian Mind from Peter the Great to the
Emigration (New Haven: Yale University Press, 2010). He has been awarded
grants and fellowships from IREX, SSHRC, the US Institute of Peace, Harvard
University’s Olin Institute for Strategic Studies, the National Humanities Center
and a Brock University Chancellor’s Chair for Research Excellence. A copy of his
CV and list of teaching experience is attached.1

3. Professor Schimmelpenninck was appointed Acting Associate Dean, Research


and Graduate Studies on March 1, 2015.

The Grievance

4. On July 30, 2018, the Provost of the University wrote to Professor


Schimmelpenninck advising him that the University had decided to cancel his
teaching assignment for the fall term and advising him that he could not work
with graduate students during the fall term. A copy of the Provost’s July 30, 2018
letter is attached.2
-2-

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

The Events Leading To The University’s Decision of July 30, 2018

6. On September 23, 2015, one of Professor Schimmelpenninck’s former graduate


students who was no longer at Brock contacted Campus Security to file a report
against Professor Schimmelpenninck. She stated she had been out drinking with
him on October 20, 2014 and into the morning of October 21, 2014. At this point
she was still one of his graduate students. She alleged that on the morning of
October 21, 2014, Professor Schimmelpenninck had invited her back to his office
and had engaged in conduct involving unwelcome sexual advances,
inappropriate and unwelcome physical touching, comments of sexual nature, a
provocative comment attempting to arrange ongoing intimacy and comments
relating to how he would characterize their relationship should he be questioned
about it.

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).

9. The investigation was conducted from November of 2015 to December of 2015


and the final report completed on or about January, 2016. The report concluded
-3-

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

11. Professor Schimmelpenninck responded on March 2, 2016 denying the


allegations. He also informed the University that he had been drinking
excessively and irresponsibly for many years and stated that he was seeking
assistance in treating this condition and had ceased any alcohol consumption. A
copy of the March 2, 2016 letter from Professor Schimmelpenninck is attached.6

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.

13. On March 8, 2016 the University wrote to Professor Schimmelpenninck,


summarizing the accusations against him and notifying him that the following
disciplinary penalties would be imposed against him:

(a) Professor Schimmelpenninck was released from his appointment as


Associate Dean, Graduate Studies and Research, effective immediately;

(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-

drinking problem that Professor Schimmelpenninck disclosed in his March


2, 2016 letter; and

(d) during the suspension and paid leave of absence Professor


Schimmelpenninck was restricted from attending the University campus
unless he had requested and received written approval to do so.

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.

Media and Community Response to the Allegations

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

19. At least two faculty members as well as Professor Emeritus, University of


Waterloo, Kenneth Westhues complained about the CBC’s misleading reporting,
which had severely damaged Professor Schimmelpenninck’s standing in the
field. Some wrote the CBC to protest the exaggerations and misleading
statements in its coverage. They also wrote President Lightstone to express their
concern that the University had done nothing to rebut the CBC’sallegations.
Copies of some of this correspondence are attached.12

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

The November 10, 2016 Letter and Grievance

29. On November 10, 2016 the University provided Professor Schimmelpenninck


with a letter regarding his possible return to work. The University indicated that
prior to his return the University would require Professor Schimmelpenninck to:
-8-

(a) successfully complete a residential substance abuse recovery program


and provide written proof of this completion;

(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.

30. In addition, upon returning to work, Professor Schimmelpenninck would be


required to maintain ongoing membership and participation in an after-care
program for substance abuse recovery and provide monthly written proof from
the program of continuing compliance. Professor Schimmelpenninck was also
restricted from consuming any alcoholic substances on or off duty.

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.

35. In the winter of 2017, Professor Schimmelpenninck was on workload course


release. During the 2017/2018 academic year, he was on sabbatical.

The Health and Safety Review

36. To assist in managing the continued concerns expressed by faculty about


working with Professor Schimmelpenninck, the University retained a professional
facilitator, Jacquie Herman, to work with the Department of History.

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.

39. In January of 2017, Professor Schimmelpenninck and the University developed a


statement regarding Professor Schimmelpenninck’s return to work for the
purposes of responding to any internal or external inquiries, including news
media. The statement included reference to Professor Schimmelpenninck’s
highly publicized disciplinary process in 2015 and 2016 as well as the changes
- 10 -

that the University had implemented in response to this incident. A copy of this
joint statement is attached.24

Events Leading to Current Grievance

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.

42. Ms. Guarasci sent a follow up email to Professor Schimmelpenninck on July 4,


2018. She noted that the University was continuing to assess the best way to
resolve the issue of Professor Schimmelpenninck’s return while satisfying its
obligations to its faculty and students. She suggested that it may be beneficial for
the University and Professor Schimmelpenninck to engage the assistance of an
independent mediator. A copy of Ms. Guarasci’s email dated July 4, 2018 is
attached.25

43. Professor Schimmelpenninck responded on July 9, 2018 rejecting Ms. Guarasci’s


suggestion. He noted that the matter had been resolved in the March 8, 2016
- 11 -

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

45. The Provost sent the letter referenced in paragraph 4 to Professor


Schimmelpenninck on July 30th 2018. BUFA responded on July 31, 2018, with a
grievance that conveyed Professor Schimmelpenninck’s desire to return to the
class room.

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