IN THE MATTER OF AN ARBITRATION  
Between:  
UNIVERSITY OF SASKATCHEWAN FACULTY ASSOCIATION  
(Professor Kyle Anderson)  
Union  
Grievor  
-and-  
UNIVERSITY OF SASKATCHEWAN  
Employer  
Respondent  
AWARD  
Before:  
Eric Cline K.C., Q. Arb. Arbitrator  
Heard September 7 & 8, 2022  
For the Union: Gary Bainbridge KC.  
For the Employer: John R. Beckman K.C., and Robert P. Emes  
INTRODUCTION  
[1] This grievance and arbitration concerns whether a letter of direction issued by the  
Employer University to a faculty member represented by the Union is disciplinary in substance,  
and whether it is in violation of the provisions of the Collective Agreement between the  
parties.  
[2] The matter came on for hearing in Saskatoon, Saskatchewan on September 7 and 8, 2022.  
Both parties agreed the Board was properly constituted and had jurisdiction to deal with the  
matters raised by the grievance. The parties agreed that although Counsel for the Union would  
present its case first, this did not prejudice the Union from arguing the action taken by the  
Employer in issuing the letter of direction was a disciplinary measure.  
[3] Neither party had any preliminary objections or motions. Neither party sought an order  
excluding witnesses as it was not planned to have witnesses present except when they came  
to testify, other than the employee concerned.  
[4] The Collective Agreement provides for resolution of disputes through binding arbitration,  
and I was appointed sole Arbitrator by agreement of the parties. The parties agreed to waive  
the statutory time limit for the issuing of awards.  
[5] At the conclusion of the partiescases, the hearing portion of this matter was closed, and I  
reserved my decision to a future time.  
FACTS AND EVIDENCE  
[6] Kyle Anderson PhD. (Molecular Biology and Genetics; University of Alberta, 2008) is a  
tenured Assistant Professor, Department of Biochemistry, Microbiology and Immunology,  
College of Medicine, University of Saskatchewan. He attained tenure in June, 2018. He joined  
1
the College of Medicine in 2012, as a tenure-track Assistant Professor (Academic  
Programming). The “Academic Programming” designation means that Professor Anderson was  
hired with the expectation he would concentrate more on effective teaching methods for the  
conveying of information, as distinct from faculty members hired with the intention they focus  
on research activities. Professor Anderson is enthusiastic about teaching and conveying  
knowledge to others. He has been presented with awards for excellence in teaching on two  
occasions and nominated on several other occasions. He received salary increases for  
meritorious teaching. The events leading up to the grievance and arbitration did not involve  
any complaint concerning the performance of his employment duties, but certain posts and  
tweets he had authored on his personal Facebook and Twitter social media accounts.  
[7] The Department Head of the department Professor Anderson was part of testified for the  
Employer. He agreed with Union Counsel when asked, that Professor Anderson was regarded  
as “an excellent instructor.” Professor Andersons interest in the subject of effective  
instruction is reflected by the many programs and seminars about effective teaching methods  
he has attended, as well as written published material and presentations on the subject. His  
CV, filed in evidence, indicates participation in media, videos and discussions intended for the  
community at large in most years since joining the College in 2012.  
[8] After the advent of the COVID-19 pandemic in 2020, Professor Anderson was concerned  
that the Saskatchewan government, in his opinion, was not implementing practices and  
protocols which were as effective as possible. He posted information on his personal Facebook  
and Twitter accounts concerning the matter. This was during the time when the “first wave” of  
the pandemic was occurring in Canada, and vaccines were not yet approved and available.  
Widespread efforts to “flatten the curve” by slowing down the rate of transmission were  
underway across the country and around the world in an effort to prevent a feared  
overloading and consequent breakdown of the healthcare system. It was therefore considered  
necessary to test the population and isolate those who tested positive for the virus and trace  
their contacts to test and treat them as well.  
2
[9] Professor Anderson posted a video on his personal Facebook site in August 2020  
advocating “pool” testing in schools, which could dramatically increase the number of students  
tested at a given time, and reduce the time required to test the entire student body. In due  
course this approach was adopted. The video was viewed around 50,000 times by December  
2020. Professor Anderson also tweeted science-based information to counter myths and  
challenge misinformation concerning COVID-19. His postings had been viewed over 1.2 million  
times by December 2020. The posts attracted a large following. As well, because Professor  
Anderson became well known in the community for his provision of science-based information  
to fight the pandemic, media began to seek him out to be interviewed about various aspects of  
the pandemic. Between August 2020 and September 2021, he participated in 89 interviews on  
television, radio, or for newspaper articles, or approximately seven per month. Many people,  
presumably in the thousands, received information about the pandemic in this manner in  
addition to those who accessed social media accounts.  
[10] The information on social media and provided to other media related to immunology and  
microbiology and was therefore complementary to Professor Anderson’s academic work. That,  
and his concern over misinformation to the public, led him to believe it was necessary and  
helpful to provide factual, science-based information. It was also the view of the College of  
Medicine that misinformation and myths about the virus should be countered with science-  
based information, in the interest of public health. His Department Head Bill Roesler excused  
Professor Anderson from an August 2020 meeting on the basis the latter was “doing some  
important public service.” On December 11, 2020, College of Medicine Dean Preston Smith  
sent an email to Professor Anderson, as follows:  
Hi Kyle,  
3
I just wanted to say thank you for your advocacy and contributions to the public  
discussion on the pandemic. I’ve enjoyed reading your tweets, etc. Keep up the good  
work.  
[11] The President of the University was made aware of Professor Andersons social media and  
media work in December 2020 when Professor Anderson sent him an email about it.  
[12] Professor Andersons posts and tweets regarding COVID-19 appeared on his personal  
social media accounts. He did not expressly purport to be speaking on behalf of the University.  
He did include in his profile on both Facebook and Twitter the fact that he was a tenured  
Assistant Professor at the University, in the College of Medicine. The University and the  
College did not specifically endorse the information provided to the public; it was clear,  
however, that the College welcomed Professor Andersons efforts to counter misinformation.  
[13] Documents placed in evidence before the Board demonstrated that Professor Andersons  
Department Head and other personnel in the College of Medicine received media inquiries  
about COVID-19 and referred these to Professor Anderson to be handled. In some cases,  
representatives of the media were advised to contact Professor Anderson directly.  
[14] In December 2020 Professor Anderson became embroiled in a rancorous exchange on his  
Facebook social media account. The exchange was with a person skeptical about the validity of  
the virus and various government mandates to counter it (herein sometimes referred to as  
“the December posts”). Professor Anderson regarded the individual as a “troll,” i.e., a person  
disagreeing with another in an antagonistic and sometimes insulting manner. The individual  
had been challenging mainstream science related to COVID-19 in late November and into  
December 2020 on Professor Anderson’s Facebook site. She levelled criticism of a personal  
nature at Professor Anderson as well as maintaining the pandemic was not real. After some  
exchanges, Professor Anderson responded with sarcasm, and referred to the woman as a  
“skanklet” and a “worthless piece of s—t” and suggested humanity would be better off if she  
4
went away. The December posts were brought to the attention of the College of Medicine  
when someone posted a screen shot of them on a College site. College Communications  
Specialist Kate Blau referred it to Department Head Bill Roesler. Professor Roesler spoke with  
Professor Anderson, who said he was not used to being confronted or attacked in this matter  
and so had become upset and responded to provocation. He stated this was an isolated  
incident and that many people were being reached with the information provided. He  
admitted he “could have done better,” and said he would avoid antagonistic exchanges.  
[15] The posts in question were brought to the attention of both Department Head Roeseler  
and College of Medicine Dean Preston Smith. Professor Roesler suggested that Kate Blau,  
Communications Specialist in the College of Medicine, meet with Professor Anderson to  
provide some guidance if he is going to continue to be effective but also to… emulate the  
Universitys desire to be respectful. Some of the comments are downright rude and  
condescending. I’m glad that he reached out.”  
[16] Ms. Blau made arrangements to meet with Professor Anderson electronically. She  
subsequently reported to Professor Roesler and Dean Preston Smith that the meeting went  
well, and Professor Anderson seemed to see the value in avoiding negative interactions and  
“seems very interested in continuing to do media interviews and helping debunk  
misinformation that’s out there while promoting science and trust in/value of science – which  
is fabulous.”  
[17] Ms. Blau testified on behalf of the Employer. She said she found Professor Anderson to be  
open to guidance and she was pleased with his receptiveness.  
[18] As Department Head, Professor Roesler testified on behalf of the Employer. He said he  
met with Professor Anderson and indicated that both he as Department Head, and the  
University, had an expectation that communications by faculty members should be  
professional and respectful. He testified the conversation went well, with no “pushback” from  
5
Professor Anderson. He did not debate the issue and appeared to take the advice well.  
Professor Roesler felt Professor Anderson’s social media had a good following and wanted the  
effort to continue to succeed. Subsequently, he received the positive report from Ms. Blau  
concerning her meeting with Professor Anderson.  
[19] Professor Roesler was satisfied that Professor Anderson took the comments and advice  
seriously, and he felt the matter was handled and resolved and no further steps or discipline  
were required. It is clear that the Dean of Medicine was aware of the December posts and that  
it was decided the best course of action was communications guidance. Counsel for the  
employer conceded that if matters had ended at that point, nothing further would have been  
done concerning the December posts. The matter was considered closed.  
[20] Much examination and cross-examination occurred about the December posts. I do not  
regard them as grounds for a letter of direction issued by the University in April, 2021,  
concerning several “tweets” (herein sometimes referred to as the “April tweets”) given that  
the matter was considered handled and resolved, and the letter of direction does not indicate  
it purports to be in relation to the December posts. As well, the December posts and the April  
tweets, while similar in some respects, differ in others. The December posts are relevant to  
the question of whether Professor Anderson was provided with guidance about social media  
postings and the University’s expectations.  
[21] In April 2021, some tweets of Professor Anderson on his Twitter site were brought to the  
attention of the University.  
[22] On April 14, 2021, Professor Anderson posted a tweet on his Twitter account stating:  
From the number of people who say things to me lately there is a much stronger  
undercurrent of anti-Moe exasperation across the province than we are aware of. It  
sounds like there are already plots and maneuverings in motion to take down the Mad  
King of Saskeros.  
6
[23] Subsequent to this post, the RCMP went to Professor Andersons home to question him  
about it. He viewed this as an instance of “swatting,” i.e., someone referring emergency  
personnel to another house under the false pretext they are advocating violent behaviour.  
[24] This was brought to the attention of the University. In his evidence, Professor Anderson  
said that provincial health personnel were not always in agreement with the provincial  
government and that some felt adequate public health protocols had not been implemented.  
His comments expressing a hope the Premier would be “taken down,” were satirical and the  
reference to “Mad King of Saskeros” was simply a takeoff on the television series “Game of  
Thronesin which there was a King of Westeros.  
[25] Professor Anderson felt the approach of the provincial government was not evidence-  
based and a more robust set of policies was necessary to keep Saskatchewan safe, such as  
allowing to work from home, travel restrictions, and other measures.  
[26] Professor Roesler said that when the screenshot concerning the RCMP was brought to his  
attention, his primary concern was for Professor Anderson’s personal safety. He also felt the  
comments were disrespectful to Premier Moe.  
[27] The tweet described above, which could be viewed as satirical and not unusual in political  
discourse, was neither the focus of the parties at the hearing in this matter nor specifically  
referred to in the subsequent letter of direction which followed the April tweets. The major  
concern was clearly a tweet of April 22, 2021.  
[28] On that day, Professor Anderson tweeted some comments which he received from  
another individual:  
I can’t verify this information but in the interest of promoting public discussion of  
whether teachers work in a safe environment, I am sharing it here.  
“Exactly Kyle!!! _____ is a ____ I think. _____ agrees!! He fights for us as you  
do!! Apparently the kid who gave the EA Covid kept coming to school with  
7
diarrhea and refused to wear a mask. They are murderers. Please don’t use my  
name, but that’s what’s happening. MJ schools need to shut down. How many  
have to die before anything is done!”  
[29] It was Professor Anderson’s evidence that he retweeted it because, if true, it was  
evidence in support of his position. In response to cross-examination by Counsel for the  
Employer, he stated that although the information turned out to be inaccurate, it was  
“accurate at the time” to him and when he found out that it wasn’t, he apologized and  
removed it.  
[30] On April 28, 2021, without having been made aware of any complaints concerning the  
tweets of April 14, 2021 related to dissatisfaction with Premier Moe, and of April 22, 2021 re-  
tweeting the accusatory tweet of another individual in relation to the death of an EA in Moose  
Jaw, Professor Anderson received a letter from the University of Saskatchewan. The letter was  
headed “University Standards of Conduct in Social Media” and was signed by the University  
President, the Vice President, Academic, and the Dean of Medicine. The letter was copied to  
Department Head Bill Roesler and to the Associate Vice President, Strategic Communications  
and Chief Communications Officer.  
[31] The letter is reproduced below:  
RE: UNIVERSITY STANDARDS OF CONDUCT IN SOCIAL MEDIA  
The University has received multiple complaints from the public expressing concerns with  
communications you have recently posted and shared through social media. Some of these  
complaints have expressly asserted that you are leveraging your status as a member of the  
faculty of the University of Saskatchewan in your postings.  
While we recognize your right to express your personal opinions via social media, your social  
media account profile openly identifies that you are doing so as a ‘tenured Assistant Professor  
in Biochemistry, Microbiology and Immunology @ Usask.’  
Portraying yourself as representing the University and leveraging your status as a faculty  
member to support the advance and dissemination of your personal opinions on topics and  
8
with respect to statements not approved or endorsed by the University is having an injurious  
effect to the reputation of the University. Of particular concern, you recently shared unverified  
information about the tragic death of an educational assistant and the unverified allegation  
that a child was responsible for this death. The University has received concerns that this post  
was hateful and unconscionable, and that it amounted to a targeted victimization of a  
vulnerable family. Such statements and actions, independent of whether they represent your  
personal view-point, are being wrongly associated by the public the University and are  
therefore, contrary to the established institutional guidelines with respect to University’s  
approved best practices of social media usage, of which you have been made aware in the past,  
and contrary to University’s principles and values.  
We direct, for the reasons noted above, that you remove from your social media account any  
and all references to your employment with the University of Saskatchewan as well as any  
references to your association with the University in any comments, tags or positions used or  
expressed through your personal communications. We trust this directive is clear and is  
implemented immediately. Failure to abide by the directions provided in this letter may result  
in further action, up to and including disciplinary considerations pursuant to university policies  
and standards of conduct and in accordance with collective agreement considerations.  
Later the same day Professor Anderson received the above letter, he also received a tweet  
from a Moose Jaw resident who was a friend of the family of the child whose EA had died from  
COVID-19. It said: “Are you the f__g idiot that called a child with autism a murderer?”  
Professor Anderson responded “Nope, but who is spreading those lies. I might need to hire a  
lawyer to sue for defamation.” Professor Anderson also displayed a prior tweet in which he  
agreed with a third person that some children cannot wear masks and should still be  
supported. The Moose Jaw individual replied:  
The family of the boy are distraught over the loss of a dear friend and brought this tweet to my  
attention, even putting an idea out like this for ‘public discussion’ is absolutely gross  
ESPECIALLY when you state you have nothing to back up these claims.  
[32] An exchange then occurred in which Professor Anderson explained he had autism and he  
had a son with autism that he would not have been able to mask when he was younger and  
that the message was not intended to be directed at the child but to the people deciding to  
keep the schools open. It was pointed out by the Moose Jaw individual that that was not clear.  
Professor Anderson said he was relaying information sent to him and that he wasn’t aware the  
student had any special needs and had been led to believe the student had made a choice. The  
9
Moose Jaw individual then said the child should not have been brought into the discussion and  
that Professor Anderson was irresponsible reproducing claims and statements without  
verification. Professor Anderson offered to speak with the parents and agreed to delete the  
tweet. The Moose Jaw individual said the family would appreciate that and apologized for  
speaking harshly. He repeated that information should not be passed on before verified.  
Professor Anderson referred to two school deaths which had occurred and said schools should  
be closed. The Moose Jaw individual said he agreed with that, but not with the tweet.  
Professor Anderson said he had deleted the tweet and displayed some other tweets he had  
posted which said some children could not wear masks. The Moose Jaw individual thanked  
Professor Anderson and said he would let the family of the child know and that they would be  
grateful. The conversation ended as follows:  
I hope you’ll relay to the family my sincere apologies. This was never meant to be about the  
child, parents, or even making an example of this EA, the school or division. It was with the  
intention of making sure everyone gets through this pandemic as safely as possible. In my  
urgency to prevent another case such as this I lost sight of what other people might read into  
something that seemed very clear to me.  
Once again, if they wanted to hear from me, I’d welcome a chance to let them know more  
directly.  
I will for sure let them know. Again thank you for taking this time, I’m sure if they want to talk  
they will reach out. And thank you for pushing for those vaccines, teachers need them!  
COLLECTIVE AGREEMENT PROVISIONS  
[33] The relevant Collective Agreement provisions are:  
6. ACADEMIC FREEDOM  
6.1  
The common good of society depends upon freedom in the search for knowledge and in its  
exposition. Academic freedom in teaching, scholarship and research at the University is  
essential to society. Accordingly, all employees, whether tenured or not and regardless of  
prescribed doctrine, are entitled to the exercise of their rights as citizens and to freedom in  
carrying out research and in publishing its results, freedom of discussion, freedom to teach the  
subject assigned in classes, freedom to criticize the University and the Association without  
suffering censorship or discipline. Academic freedom does not require neutrality on the part of  
the individual, but makes commitment possible. Academic freedom carries with it the duty to  
use that freedom in a manner consistent with the scholarly obligation to base teaching and  
research on an honest search for knowledge.  
10  
6.2  
Employees shall not improperly represent themselves as speaking for the University.  
12. PERSONAL FILES  
12.1  
Data pertaining to the employment of an employee and necessary for the administration of  
this Agreement shall be placed in a personal file within the office of the employee's Dean;  
copies of the data contained in the personal file in the Dean's office may also be kept in  
department files and in the President's Office. In the case of medical reports provided in  
confidence by an employee's physician for the purpose of complying with the terms of the  
Academic Long Term Disability Plan, and in that case only, information regarding that  
employee shall be kept in a separate file in the Human Resources Division, and shall be  
accessible only to agents of the Employer for the purpose of administration of that plan. Any  
other requests for access to that information must be approved by the Joint Committee for  
the Management of the Agreement. The Employer is responsible for assuring that the  
personal files within the Deans' offices have all of the relevant data. In particular, material in  
departmental and other files to be used in connection with renewal of probation, tenure,  
promotion or salary review shall be contained in the Dean's Office file. Employees are  
expected to cooperate with designated University officers engaged in the discharge of this  
responsibility.  
12.1.1  
No anonymous material, except approved course evaluations, shall be kept by the Employer  
concerning any employee. Approved course evaluations are those which (a) are approved for  
use by the faculty of a department (or College in the case of a non-departmentalized College)  
in committee within guidelines established by the College, and (b) are properly validated  
instruments of performance evaluation. Information from such course evaluations included  
in an employee's file shall be aggregated or summarized and shall exclude any anonymous  
remarks made by students.  
12.2  
Each employee shall have the right to reasonable access to the entire contents of the  
employee's own personal file, with the exception of confidential information, as defined in  
Article 12.3. An employee may authorize a representative of the Association to review the  
employee’s file and summarize confidential information without revealing the source. The  
summary shall be reviewed and approved by the Dean or the Dean’s designate prior to being  
released to the employee. Examination of the contents may take place only in the presence  
of the Dean or a person designated by the Dean for this purpose. An employee may not  
remove any of the contents of the employee's personal file.  
12.3  
In the case of personal files, confidential information means signed letters of reference and  
any other letter or document transmitted in confidence which the employee, the employee's  
Department Head, Dean or other agent of the Employer has solicited in writing. Unsolicited  
documents and letters containing a serious allegation, whether they are transmitted in  
confidence or not, may be put in an employee’s personal file only if the allegation has been  
substantiated in accordance with the provisions of Articles 12.3.1, 12.3.2 , 12.3.3, 12.3.4, and  
12.3.5. 12.3.1 If any document(s) or letter(s) containing a serious allegation of misconduct  
are received by a Department Head, they shall be transmitted to the Dean. When a Dean  
receives any document(s) or letter(s) containing a serious allegation of misconduct, the Dean  
shall undertake an inquiry, which shall include discussing the relevant facts or opinions with  
the employee. The employee may choose to be accompanied by a representative of the  
Association during such discussion with the Dean.  
11  
12.3.2  
When an allegation is made against an employee, the Dean shall make the document(s) or  
letter(s) available to a representative of the Association. The Association representative may  
summarize the allegation for the employee, without revealing the source of any confidential  
letter or document to the employee. The summary shall be reviewed and approved by the  
Dean or the Dean’s designate prior to being released to the employee.  
12.3.3  
12.3.4  
Following the initial inquiry, the Dean shall: (i) Dismiss the allegation, or (ii) Inform the  
employee of the outcome of the inquiry, and the option(s) for informal resolution, or (iii)  
Inform the employee of the outcome of the inquiry and the decision to proceed with a formal  
investigation.  
If the Dean determines that a formal investigation is warranted, the Dean shall investigate or  
direct the investigation in accordance with the following:  
(i)  
Where applicable, the investigation shall follow the procedures prescribed by  
university policy, and/or corresponding legislation.  
(ii)  
All documentation pertaining to the allegation, including the identity of the  
complainant, shall be forwarded to the employee and the Association.  
The employee shall be given an opportunity to respond to the allegation.  
The Employer shall provide the Association with copies of any related correspondence  
with the employee.  
(iii)  
(iv)  
(v)  
(vi)  
The employee and the Association shall be notified of the outcome of the investigation  
Upon request, the Employer will release a copy of the investigative report to the  
Association, subject to appropriate limitations.  
12.3.5  
If the allegation is substantiated, the document(s) or letter(s) may be placed in the  
employee's personal file normally within 90 days of the receipt of the document(s) or  
letter(s), provided that the employee is informed and permitted to file any explanation in  
rebuttal. The fact that the employee was so informed shall be noted in the file.  
30. LETTERS OF EXPECTATION AND LETTERS OF INSTRUCTION  
30.1 Letters of Expectation.  
A letter of expectation is a non-disciplinary letter issued by a Dean to an employee. The purpose of a  
letter of expectation is to counsel and communicate. A letter of expectation shall have the following  
attributes:  
(i)  
(ii)  
it shall be clearly labelled as a letter of expectation;  
it shall identify and clarify the expected standard of performance, or the tasks, functions, or  
responsibilities that are expected of an employee and shall not refer to culpable actions or  
behaviour on the part of the employee;  
(iii)  
(iv)  
(v)  
it may provide guidance and assistance, as appropriate;  
it shall not prescribe actions of the employee;  
it shall not identify concerns possibly warranting future discipline or be used as the  
foundation for building potential future disciplinary actions;  
it shall not be added to the employee’s personal file.  
(vi)  
12  
30.2 Letters of Instruction.  
Letters of instruction are disciplinary letters and may be a precondition to discipline as per Article  
31.1.3. The purpose of a letter of instruction issued by a Dean to an employee is to direct the standard  
of performance that is expected, and specifically, the standard of performance that is not acceptable.  
A letter of instruction shall have the following attributes:  
(i)  
(ii)  
it shall be clearly labelled as a letter of instruction;  
it is a specific and proper instruction concerning the tasks, functions, responsibilities, or  
standard of performance expected of the employee;  
(iii)  
(iv)  
further incidents may be followed by further letters of instruction or discipline.  
the letter shall be added to the employee’s personal file in accordance with Article 12.3.7.  
31. DISCIPLINE  
31.1 Discipline is specific action taken by the Employer based on an allegation that an employee has  
not performed the employee's duties at a standard that is considered acceptable, or has failed  
to carry out a proper instruction given by an administrative superior.  
31.1.1 An allegation requiring disciplinary action can only be justified if the following conditions are  
determined to have existed:  
(i)  
the tasks or functions or responsibilities that are expected of an employee have been  
made clear to the employee through specific instruction, or it could be reasonably  
expected that such tasks or functions or responsibilities would be specifically known to  
an employee on the basis of the employee's rank and current terms of appointment;  
through specific and proper instruction, or on the basis of the employee's rank and  
current terms of appointment, the employee must have had a reasonable opportunity  
to know and understand the standard of performance that is expected, and specifically,  
the standard of performance that is not acceptable;  
if the disciplinary action is to be taken on the basis of a cumulation of allegedly  
censurable events, it is required that, in the course of the cumulation of allegedly  
censurable events, the employee will have been properly informed that the employee's  
performance was not at an acceptable level;  
(ii)  
(iii)  
(iv)  
in the case of an alleged refusal to carry out an instruction, such instruction will have  
been provided to the employee in written form, unless circumstances precluded the  
opportunity for written instruction to be received by the employee.  
31.1.2 Failure to carry out the instructions given by an administrative superior are not valid grounds  
for disciplinary action, if:  
(i)  
the instruction is in conflict with the employee's right to engage in legitimate collective  
bargaining activity; or  
(ii)  
the instruction infringes upon the employee's right to academic freedom.  
31.1.3 Discipline shall take the form of (i) reprimand, or (ii) dismissal, except that when an Arbitration  
Committee decides not to uphold a recommendation for dismissal, the Committee shall have  
the power, under Article 31.5.10.7, to substitute whatever lesser form of discipline it considers  
appropriate, aside from change in academic rank or tenure.  
31.1.4 An employee may, at the President’s discretion, be temporarily relieved of duties at any stage  
in the discipline process. Unless, and until the Arbitration Committee recommends that the  
13  
employee be dismissed and the Board acts upon such recommendation from the President, the  
employee shall retain the employee's appointment at full salary.  
31.2 Reprimand. Reprimand shall be a written statement issued by the President, on the  
recommendation of the Dean, to an employee stating that the employee's activities have been  
such as to violate acceptable standards of performance of tasks, functions, or responsibilities  
appropriate to the employee's present rank and current terms of appointment, or that the  
employee has failed to carry out a proper instruction. The written statement shall include  
reasons for the disciplinary action, and a copy shall be sent to the Association.  
31.2.1 In the year subsequent to a reprimand, the Employer may withhold a Career Development  
Increase from the employee who has been reprimanded.  
31.2.2 A reprimand shall be added to the employee’s personal file in accordance with Article 12.3.8.  
31.2.3 A grievance against a reprimand shall conform to the grievance procedure as set out in Article  
27 of this Agreement.  
31.3 Dismissal is the termination by the Board of the appointment of any employee as a  
consequence of disciplinary action. A decision not to renew a probationary appointment, or not  
to grant tenure status at the conclusion of a probationary period, does not constitute dismissal.  
ISSUES  
1. Was the April 28, 2021 letter disciplinary?  
2. If so, was the disciplinary process in accordance with the Collective Agreement?  
3. If both questions above are answered affirmatively, were both wrongful conduct and  
harm to the reputation of the University proven?  
4. Does the restriction on commenting on place of employment violate Article 6.1 of the  
Collective Agreement by curtailing freedom of speech and/or the exercise of academic  
freedom?  
14  
1. WAS THE APRIL 28, 2021 LETTER DISCIPLINARY?  
[34] No one would deny the utmost importance of academic freedom at institutions of higher  
learning. That doesn’t mean that anything and everything done or said by a university  
professor is an exercise of academic freedom. I agree with the submission of the Employer  
that academic freedom does not mean there can never be consequences related to the use of  
language. Language can be used in various ways which may not relate to the freedom to speak  
or debate matters as part of academic life. There is speech in an academic setting unrelated to  
academic freedom. Speech may be sanctionable if it is inimicable to the wellbeing of the  
institution in some real and significant way. At the same time, any action taken respecting free  
speech must be for good and valid reasons justifying intrusion into an area which should not  
be lightly entered into, and any action must be demonstrably justified, and effectual to some  
valid purpose. Guidance is provided by reference to the Collective Agreement.  
[35] The Union asserted the April 28, 2021 letter (herein “the letter of direction”) was  
disciplinary in nature, notwithstanding the Employer’s assertion it was not intended to be  
disciplinary, because it was in substance disciplinary. The Union argued the letter of direction  
made findings of culpable behaviour on the part of Professor Anderson and warned of  
potential disciplinary action in the event he failed to comply with the direction not to disclose  
his employment status as a faculty member at the University. The Employer argued the letter  
of direction was not disciplinary because it was not intended to be disciplinary, did not restrict  
the exercise of academic freedom because inappropriate posts were not an exercise of  
academic freedom per se, that the University was entitled to protect its reputation, there were  
no consequences arising from the letter, and the letter was not placed on the personal file of  
Professor Anderson. The University submitted that the direction to not reveal his university  
affiliation was an appropriate response to unprofessional speech.  
[36] Arbitrators have generally followed the approach that in determining whether an action is  
disciplinary, the way in which the action is described by the employer, or the employers  
15  
stated intention, is not determinative. It is the substance of the action which must be  
examined, and each case depends upon its own particular facts. Arbitrators have identified  
factors which assist in making a determination, including consideration of the employers  
stated intent, whether some punishment is involved, whether there is potential to prejudicially  
affect an employees situation, including whether it can be used against the employee in the  
future: Brown and Beatty, Canada Labour Arbitration (4th Ed.) at 7:56.  
[37] In University of Saskatchewan and USFA (2015, unreported) (Sims), letters of direction  
were found not to be disciplinary because the letters were exculpatory of the recipients,  
contained no direct disciplinary language or consequence, and no overt raising of the potential  
for future discipline. Arbitrator Sims noted “it is not a case of a letter which contained a  
serious allegation or unsubstantiated allegations.” (p. 43)  
[38] I will begin analysis of the letter of direction by reviewing statements and underlying  
conclusions as to various matters which are expressed in it and asking whether they appear to  
be straightforward and substantiated. The letter refers to “multiple complaints from the public  
expressing concernsabout Professor Anderson’s social media postings. The question of  
whether there were multiple complaints is relevant because, as will be discussed below, the  
test for determining whether discipline for or the regulation of free speech by an employer is  
warranted may depend, as it is alleged in this case, upon proof of harm to the reputation of  
the institution. The number and level of complaints and the contents of the complaints, i.e.,  
whether criticism had to do solely with the employee, or whether the institution was criticized  
as well, may inform the question of whether there has been harm to the reputation of the  
institution, as distinct from the reputation of the employee concerned. The fact of complaints  
would not in itself reveal whether there was damage to the reputation of an employer; it  
would depend upon the nature of the complaints. There was no evidence presented as to the  
number of complaints, or the specific nature and tone of the complaints. The Employer relied  
upon the fact the letter of direction states there were multiple complaints as evidence there  
were multiple complaints. None of the three signatories to the letter were called to give  
16  
evidence about the circumstances leading to the conclusions reflected in the letter of  
direction. There was no explanation offered for the failure to call one or more of the  
signatories to the letter. The only evidence offered by the witnesses for the employer  
concerning the complaints was reference to two screenshots, one in December 2020 and one  
in April 2021 which brought the December posts and the April tweets to the attention of the  
College of Medicine. There was no further factual underpinning for the statement in the letter  
that there were multiple complaints. Therefore, the specific nature of the complaints is  
unknown, and it is unknown whether there were a few (e.g. 5) complaints or many complaints  
or whether they indicate harm to the reputation of the Employer.  
[39] Even if it was accepted that a statement in the letter of direction that there were multiple  
complaints was itself proof of multiple complaints, we still would not know how many  
complaints there were and we would not know the contents of the complaints. The Employer  
could have called the signatories to the letter, or one of them. The signatories were in a  
position to address the question of whether there was harm to the reputation of the  
University by advising the Board as to the number of complaints, and the tone and nature of  
the complaints. That “best evidence” was in the hands of the Employer. The Employer having  
the onus of proof, did not bring it forward. In these circumstances, the Board was asked by  
the Employer to “infer” that there was damage to the reputation of the University. It is not  
always necessary to establish actual loss of reputation, which may be presumed where there is  
widespread negative press scrutiny and public controversy: Toronto (City) and Toronto  
Professional Fire Fighters Association Local 3888, 2014 Can LII (Ont. LA). There was no  
evidence presented in this case to show that there was any media coverage, press scrutiny or  
public controversy with respect to this six-day tweet. Probably there were some people who  
read it and probably some of those would object to it, if they knew the facts. This might  
damage the reputation of Professor Anderson if people considered it the determining factor,  
or his reputation might nevertheless remain untarnished on the basis of the bulk of his social  
media work and public interviews. Still, it would not necessarily be the case that people would  
transfer negative sentiment to the University itself in these circumstances. Since there was no  
17  
explanation offered as to why the Board should be left in a position to infer damage to the  
reputation of the University, rather than to assess the actual evidence, in my opinion, the  
Board is left in a position where it would be improper to infer damage to the reputation of the  
University. The Board in that case would have to infer something which, if true, could easily  
have been put into evidence by the Employer. Another consideration is that this is a case  
where free speech is involved and care must be taken to ensure intervention is clearly justified  
on the basis of the best available evidence. This is in my view a case where an adverse  
inference can fairly be drawn, in another way, that failure to bring available evidence about  
the complaints forward would not have assisted the Employer’s case, as was held in (No.2)  
[1951] 4 W.W.R.(NS)214 (Sask. C.A). This underscores that it would be inappropriate to infer  
damage to the reputation of the University in this case, where available and relevant evidence  
was not presented.  
[40] The process to be followed when a letter or document with a complaint about a member  
of the Faculty Association comes to the attention of the Department Head or Dean of a College  
alleging serious misconduct is set out in Article 12 of the Collective Agreement. The complaint  
needs to be substantiated pursuant to the process set out therein before being placed on an  
employee’s personal file. Such complaints are required to be brought to the attention of the  
employee concerned and the Union so that the employee has an opportunity to be heard. It is  
not contemplated by the Collective Agreement that the Employer simply receives complaints  
and acts upon them unilaterally. It is true that the Employer says the letter of direction is not  
disciplinary. Nevertheless, while the unknown complaints are not being placed on the  
employees personal file, is that really any comfort to the employee when the Employer  
chooses to in effect find the complaints to be valid and accordingly write a letter of direction  
to the employee, without having heard the employee? The letter of direction, by its language,  
and considering the fact it was signed by the University President, the Vice President,  
Academic, and the Dean of Medicine, appears to treat whatever complaints were received as  
“serious”. Indeed, the position of the Employer at the hearing was just that. If the Employer is  
to find fault, the employee must be heard from first. That did not occur. Without hearing from  
18  
Professor Anderson, to the extent that the Employer, in effect, made adverse findings or  
expressed adverse opinions, vis-`a-vis Professor Anderson, these were arrived at without  
having any information that he may have provided. The Collective Agreement requires the  
employee concerned to be heard.  
[41] Additional underlying statements, conclusions or findings evident in the letter can be  
considered in an effort to determine whether any findings are of a serious nature, suggest  
culpability on the part of the employee, are substantiated, and provide context in a  
determination of the tone and substance of the letter.  
[42] The first paragraph states some complaints have expressly asserted “that you are  
leveraging your status as a member of the faculty of the University of Saskatchewan in your  
postings.The next paragraph says that although Professor Anderson is free to express his  
personal opinions on social media, his account profile “openly identifies that you are doing so  
as a ‘tenured Assistant Professor in Biochemistry, Microbiology and Immunology @ Usask.’”  
[43] What this seems to be saying is that identification of employment status on a social media  
profile means status as a university professor is used to “leverage” or buttress their argument  
or lend credibility through identification of that credential. This is stated in a manner which  
could be interpreted as suggesting there is some impropriety in so proceeding. Yet surely it is  
commonplace for people with credentials, when making arguments, to refer to credentials  
which are relevant to the subject they are discussing. An economics professor on television  
news talking about the economy will normally be described as a faculty member at a particular  
university. In this sense, “leveraging” is neither a negative nor a positive behaviour. It may be  
that what they said gives some rise for concern, but the identification of the affiliation with the  
university in and of itself, should not be objectionable otherwise. Perhaps the letter of  
direction is intended to convey that if a faculty member does identify their university  
affiliation, that “leveraging” of the position justifies the University as employer to assess  
alleged inappropriate behaviour which is, strictly speaking, not part of the scope of  
19  
employment duties to consider whether the conduct warrants discipline in cases where harm  
has occurred to the university.  
[44] The words of the letter of direction, in referring to the “leveraging”, seem to suggest that  
it is that concept itself which may give rise to concern, as distinct from the actual words that  
may be found to be objectionable as harmful to the University. The third paragraph of the  
letter of direction, building upon the leveraging” of status, begins with the words “Portraying  
yourself as representing the University and leveraging your status as a faculty member to  
support the advance and dissemination of your personal opinions on topics and with respect  
to statements not approved or endorsed by the University is having an injurious effect on the  
reputation of the University.” There was no evidence Professor Anderson ever portrayed  
himself as “representing the University.” The evidence was to the opposite effect and  
uncontradicted. The words of the sentence could be taken to be saying that Professor  
Anderson was dealing with a “topic” which the University had a problem with. Certainly, the  
University did not specifically approve or endorse the topic of science-based information about  
the pandemic, but it is not accurate to suggest that Professor Andersons active social media  
presence was about a topic the University would not want discussed or had some problem  
with. In fact, the Dean of Medicine, Department Head Bill Roesler, College of Medicine  
communications staff and others were enthusiastic and supportive of the topic. Of course, the  
University did not approve or endorse the comments made which are the subject of this  
proceeding. Those are, however, isolated in the sense that they are a few comments in a large  
amount of commentary over many months that the University would have no problem with.  
The treatment of the innocuous fact that a faculty member would have a profile on social  
media including their employment and would then proceed to make comments on social  
media as something unusual and perhaps impliedly nefarious could be taken as an indication  
that the letter was inculpatory in substance. The lack of differentiation between comments  
which may be objectionable and the fact that the bulk of the comments clearly are not,  
provides a picture that is somewhat negative.  
20  
[45] The key underlying finding causing concern was clearly the sharing by Professor Anderson  
of an unverified and serious allegation. There can be no question in my view that such an  
action is wrong, unwise, and should not be done, especially by a person who is highly educated  
in science and advocates a science-based approach which is an evidence-based approach.  
Professor Anderson had no evidence for the allegation in the tweet he published. Therefore, in  
my view his action in re-publishing the tweet in order to provide evidence for his argument  
that schools should be closed is a serious lapse in judgment and a departure from the  
expectation of professional behaviour on social media which the Employer might expect. It  
was a hasty latching onto an allegation which was not verified. Having heard Professor  
Anderson testify, I would not condone his conduct in that regard. Nor, however, would I  
describe it as a deliberately hateful targeting of the child in Moose Jaw. There was no  
evidence to suggest that the conduct was deliberately hateful. Professor Anderson gave  
evidence and explained he felt the tweet in question was aimed at people who make decisions  
as to whether schools should be open or not. Professor Anderson should have understood the  
plain meaning of the words, and it was wrong to pass on information without confirmation it  
was true where a serious allegation was included. On the other hand, the evidence given by  
Professor Anderson in response to both examination and cross examination was consistent  
with the exchange he had with the individual from Moose Jaw who contacted him about it. He  
would not have attacked a child with autism and has a good understanding of the situation  
because he is autistic and has a child who is autistic. Once he knew the facts, he apologized  
and removed the tweet. He made a mistake, and he acknowledged that. He was sufficiently  
sincere that an angry person who had confronted him left the conversation on fairly good  
terms with Professor Anderson, and they found some common ground.  
[46] Professor Anderson made a serious error of judgement and took thoughtless and hasty  
action a person in his position should not take. This, however, does not amount to being  
“hateful and unconscionable” and “targeted victimization of a vulnerable family.” These  
words, described as they are as having been expressed in concerns received by the University,  
21  
when repeated, can be viewed as a characterization the University endorses. In my view they  
imply a malicious intent, and the evidence did not indicate that. This speaks to the general  
tone of the letter; it raises a valid criticism but amplifies the culpability to some degree.  
Professor Anderson took an allegation at face value and published it without some  
investigation. His action was wrong, and perhaps even reckless; it was not malicious.  
Ironically, the Employer also published comments it had received without further  
investigation; a conversation with Professor Anderson would not have excused his behaviour  
but may have altered the tone of the letter of direction.  
[47] The Employer did not have the benefit of knowing about the exchange between Professor  
Anderson and the Moose Jaw complainant. It would have, had it followed the process set out  
in Article 12 of the Collective Agreement, which would have given Professor Anderson an  
opportunity to be heard and provide context. This may have altered the view of the situation  
to some extent by shedding some light on Professor Anderson’s intentions and demeanor,  
including his apology and removal of the tweet; the apology was made in the course of a  
conversation consistent with previous tweets Professor Anderson had made about children  
with autism not being responsible for their inability to wear a mask in some cases.  
[48] The third paragraph of the letter also states that Professor Anderson’s action in  
republishing the tweet in question was being “wrongly associated by the public to the  
University and are therefore contrary to the established institutional guidelines with respect to  
University’s approved best practices of social media usage, of which you have been made  
aware in the past, and contrary to Universitys principles and values.”  
[49] Although Ms. Blau testified she brought the best practices of social media guidelines to  
the attention of Professor Anderson, neither he nor Department Head Bill Roesler were aware  
of or could locate such guidelines. Ms. Blau indicated in cross examination that she could be  
mistaken as to whether she provided them and that due to some changes to University online  
presence, it may not have been possible to easily access them at some times. It was clear,  
22  
however, that the University’s expectations respecting social media were made known to  
Professor Anderson in December, 2020.  
[50] Again, there was no evidence indicating the April tweets by Professor Anderson had been  
wrongly associated by the public with the University, in the sense of assigning blame to the  
University, and, as already noted, if there was, such evidence was solely in the hands of the  
Employer.  
[51] The final paragraph of the letter requires a change in behaviour from Professor Anderson.  
It does not simply require him to remove from his social media account references to his  
employment with the University. It says: “as well as any references to your association with  
the University in any comments, tags or positions used or expressed through your personal  
communications.” To read it another way, and paraphrase, it says: “we direct… you remove…  
all references to your employment with the University of Saskatchewan in any comments …  
expressed through your personal communications.This could be taken to mean that  
Professor Anderson should not say he’s employed by the University in a letter to a friend or  
perhaps even in a private conversation. The words in question follow a direction that Professor  
Anderson remove from your social media account any and all references to your  
employment, etc.” The words “personal communications” could be read as broader than  
“social media accountand the direction may extend beyond social media account to  
“personal communications” generally. Logically, since “social media account” was already  
mentioned, the prohibition extended to some other methods, or perhaps all, of “personal  
communication.”  
[52] This may be viewed as the worst possible interpretation of the language, or it may be  
thought that the reasonable reader would know “what was meant.” I raise the issue simply to  
point out that the language can be seen as too broad and somewhat ambiguous, and still is  
expected to be complied with or some punitive action could result. The letter indicates that  
“this directive is clear” and states that it must be “implemented immediately.”  
23  
[53] The interpretation of the direction discussed above, to the effect that the prohibition on  
identifying his place of employment may go beyond social media accounts to personal  
communication in other ways, may be buttressed by the fact that the last sentence of the  
letter mentions “directions provided in this letter,” rather than simply “direction.” Restraints  
on or discipline arising from free speech require that any action taken be plainly justified,  
effectual, and expressed in clear and unambiguous language in my opinion.  
[54] Returning to Arbitrator Simsreference to the letters of direction in the case he was  
dealing with not being “a case of a letter which contained serious allegations or  
unsubstantiated allegations,” in my opinion the letter of direction in this grievance cannot be  
so described.  
[55] I find the letter of direction to be disciplinary in substance. It mentions that concerns have  
been received that the posting in relation to the Moose Jaw EA death was “hateful and  
unconscionable” conduct, which is a repeating of an allegation in a complaint to the University  
itself, which turns out to be not accurate in the sense that there was no malicious intent. The  
same could be said of the repeating of expressed concerns there was “targeted victimization  
of a vulnerable family.It asserts unauthorized representation of the University, which did not  
occur. It asserts there was the sharing of unverified information about a tragic death and an  
unverified allegation that a child was responsible for this death; these assertions are  
reasonable.  
[56] The letter implies there is something untoward about including ones occupation on a  
social media profile in that it would be “leveraging your status,” and may be taken to imply the  
social media posting question dealt primarily with topics the University would not approve,  
which is not strictly speaking accurate.  
24  
[57] The letter of direction also contains a specific direction respecting future behaviour which  
is prohibited and requires that the institution not be identified with the employee, and vice  
versa, certainly on social media and seemingly beyond. As well, the letter of direction makes it  
clear that failure to abide may result in further action up to and including disciplinary. The  
letter has a tone of judgement and direction, not akin to a mentoring or advisory  
communication.  
[58] In Re Hamilton Community Care Access Centre and OPSEU, Local 274 (2006) 149 LAC (4th  
Ed.) 340, Arbitrator Briggs stated: “even a mild chastisement where there is potential for more  
severe punishment is generally considered disciplinary.”  
[59] The letter of direction that is the subject of this grievance and arbitration is in my view not  
mild, but strong, and one which clearly finds culpability.  
[60] The Employer argued the letter would not be placed on Professor Andersons personal file  
because it was not disciplinary. As well, it was stated there were no consequences resulting  
from the letter. Regarding the former submission, if the letter was to be effective, it would  
have to go somewhere in order to mete out future consequences. As previously noted, it may  
not be comforting for employees to know that letters regarding their employment can be  
somewhere other than on their personal file. Regarding the submission that there are no  
consequences to the letter, in my view the letter is a consequence in and of itself. The letter  
places Professor Anderson in a position different than the position he was in prior to the letter,  
and in a position different from other faculty members. He can no longer say where he works.  
Oddly, the letter of direction does not say there could be consequences for future  
inappropriate posts in the event they harm the reputation of the University. It prohibits him  
from saying where he works instead. That, and the potential of future disciplinary action,  
place him in a different position.  
25  
[61] In addition to the above consequences, the letter places Professor Anderson in a different  
position than he was previously because he has been found to be culpable in the manner  
portrayed by the letter. Based upon a serious error of judgement on his part, he finds himself  
adjudged to have engaged in a hateful and unconscionable way as part of a targeted  
victimization of a vulnerable family. Or, if not adjudged exactly, the language of complaints  
repeated in the letter leave the impression he is. Since such a characterization is qualitatively  
different than being found to have made a serious, or even hasty or thoughtless, error of  
judgment, Professor Anderson, like anyone, would be troubled to see those words on the  
letter, signed as it is by a number of important and distinguished signatories. The fact that such  
findings are not clearly substantiated and were arrived at without providing an opportunity to  
be heard, would be upsetting. In my view, that kind of impact on an individual is  
consequential.  
[62] For all of the above reasons, I find the April 28, 2021 letter of direction to be disciplinary in  
substance.  
2. WAS THE DISCIPLINARY PROCESS IN ACCORDANCE WITH THE COLLECTIVE AGREEMENT?  
[63] The Collective Agreement provides three avenues of discipline for the Employer to take in  
relation to duties of employment, and a separate process to deal with letters or documents  
raising serious complaints of a less clearly defined and broader range of issues. The Employer  
can issue a Letter of Instruction pursuant to Article 30.2 which directs a standard of  
performance in a desired area. It must be labelled as such a document and be placed on the  
employee’s personal file. A letter of instruction would “direct the standard of performance.”  
This is different in my opinion from simply saying the employee cannot identify their  
association with the University; the letter of direction is prohibitive, not prescriptive.  
[64] The Employer can also issue a reprimand or dismiss employees pursuant to Article 31, in  
the event an employee is not carrying out clearly explained or understood duties. It would be  
26  
incumbent upon the Employer to establish what the prescriptive measure was in relation to  
performance of a duty of employment. In the case of private social media activity, if the  
employer established there was a duty not to harm the reputation of the institution, it could  
possibly bring such a situation within the realm of employment duties, which is necessary in  
order to discipline pursuant to Articles 30.2 or 31.  
[65] Article 12 on the other hand provides that each employee is to have a personal file in the  
Dean’s office which they may access. It takes a more general approach in so far as the range of  
possible complaints goes. It deals with situations where letters or documents containing  
complaints about faculty members come to the attention of a Department Head or a Dean. In  
such cases, the process set out in Article 12 is to be followed. The April 28, 2021 letter of  
direction indicates that the University received “multiple complaints from the public.” These  
must have been in writing or, if not, documented on some writing to be shared with decision  
makers. They are letters or documents. They deal with serious complaints. They must have  
been brought to the attention of the signatories to the letter, including the Dean of Medicine.  
Articles 12.3 and 12.3.1 to 12.3.2 provide that documents and letters containing serious  
allegations are not to be placed on the employees personal file until they are substantiated.  
The Dean of the College concerned is to make an inquiry, which is to include a discussion of  
the relevant facts or opinions with the employee. The employee is entitled to be accompanied  
by a representative of the Union. The Union is to be told of allegations against an employee.  
Following the initial inquiry, the employee is to be informed of the Dean’s decision, which can  
be continuation to a formal investigation.  
[66] Article 12 does not restrict complaints to employment duties specifically; pursuant to the  
agreement, complaints of the nature before this Board should have been handled in  
compliance with the relevant provisions of Article 12.  
[67] The Collective Agreement, through the combined operation of Articles 30.2, 31 and 12,  
prescribes the manner in which discipline is to take place or complaints are to be dealt with.  
27  
The process of the Collective Agreement has not been followed. This failure is not a mere  
technicality, because in the case of complaints, under Article 12 of the Collective Agreement  
the employee must be made aware of and have an opportunity to be heard prior to being  
disciplined.  
[68] Such a result is logical because the right to be heard prior to being judged is one of the  
most basic rights, in terms of the concept of procedural fairness. If someone makes a  
complaint about someone else, the person complained of should know about it and be able to  
say something before action is taken.  
[69] The language “specific and proper instruction concerning the tasks, functions,  
responsibilities or standard of performance expected of an employeeused in Article 30.2(ii),  
contrasted with the more general language in Article 12 may be restricted to the performance  
of the actual scope of work of the employment, as distinct from actions outside the workplace  
such as social media. Social media postings may be related to an academic job but are not a  
required function. It is possible the words “standard of performance expected of the  
employeecould include not being so inappropriate outside the workplace that the  
Universitys reputation is harmed. It appears more logical, however, to relate these words to  
the actual performance of employment scope of work. Similar language is used in Article 30.1  
(ii).  
[70] That Articles 30.2 and 31 deal with performance of employment scope of work and Article  
12 deals with documents and letters of complaint concerning other matters, albeit related to  
the employment in some way, is supported in my view by the language of Article 31.1, which  
states:  
Discipline is specific action taken by the Employer based on an allegation that an employee has  
not performed the employee’s duties at a standard that is considered acceptable, or has failed  
to carry out a proper instruction given by an administrative superior.  
28  
[71] These words appear to be related to “work” duties. It may be possible to include other  
activities under “responsibility or standard of performance” in Article 30.2(ii) or the word  
“duties” can be read as including work outside the workplace if the “responsibility or standard  
of performance” or the “duty” is violated such that the Universitys reputation is damaged, or  
the University is harmed in some other way. However, for reasons related to Article 12 as  
discussed below, in my opinion it is more logical that action outside of employment scope of  
work is covered by Article 12 rather than Articles 30.2 and 31.  
[72] The process or processes provided in Articles 30.2 and 31 contemplate different outcomes  
from what is provided by the letter of direction in this case. Article 30.2 contemplates a  
specific instruction concerning the performance of employment duties. The letter of direction  
in this case did not provide any instruction about the performance of Professor Anderson’s  
job, but simply said he could not say he worked for the University. A reprimand pursuant to  
Article 31.2 is a written statement issued by the President on the recommendation of the Dean  
related to the performance of duties that are job related. Again, direction that an employee  
not identify their employment status with the employer is not a specific instruction as to how  
to better carry out their duties. The letter of direction in this case, as previously noted, is  
prohibitive rather than prescriptive.  
[73] The interpretation that Articles 30.2 and 31 deal with discipline for matters having to do  
with performance of actual employment duties is, in my view, consistent with the structure of  
the Collective Agreement and in particular Article 12. Pursuant to Article 12, the employee is  
entitled to a personal file. Data related to the employee is to go on the personal file, and the  
employee may access the file subject to certain confidentiality provisions. Article 12 goes  
beyond that, however, by bringing into the article what is to be done if there are “unsolicited  
documents and letters containing a serious allegation,” (Article 12.3) or “document(s) or  
letter(s) containing a serious allegation of misconduct“ (Article 12.3.1). In the first case, the  
complaints may be put in the employee’s personal file if substantiated pursuant to Articles  
12.3.1 to 12.3.5 inclusive. In in the latter case, if they are received by a Department Head they  
29  
are to be transmitted to the Dean. The Dean is to undertake an inquiry “which shall include  
discussing the relevant facts or opinions with the employee … [who] may choose to be  
accompanied by a representative of the Association during such discussion with the Dean.”  
[74] Presumably, if there is a “serious” allegation it is required to be written and will inevitably  
have to be brought to the attention of the Department Head and/or Dean, since no one else  
would have the authority to deal with it.  
[75] It is noteworthy that the language of Article 12 does not relate to allegations an employee  
is not performing the duties of employment in a satisfactory manner as Articles 30.2 and 31 do  
but is broader and more general. Article 12.3 deals simply with “serious allegation(s).” Article  
12.3.1 contains the words “serious allegation of misconduct.In each case, the language more  
naturally applies to an allegation related to misconduct by an employee not strictly related to  
the performance of the duties of employment, but still a “serious allegation” or “a serious  
allegation of misconduct.The conduct of Professor Anderson complained of here seems to fit  
more logically with what Article 12 covers.  
[76] In my view, Articles 30.2 and 31 relate to the performance of an academic’s employment  
duties. Article 12 is intended to deal with complaints or allegations of conduct which may be  
extraneous to the performance of academic employment duties. Again, if I am incorrect in my  
interpretation of the Collective Agreement, it would not validate the letter of direction as a  
proper disciplinary measure because the process set out in Article 12 was not followed and the  
specific instructions contemplated by Articles 30.2 and 31 were not issued.  
[77] Whether or not the letter of direction is disciplinary, in my opinion complaints were  
required to be dealt with in accordance with Article 12, to be substantiated in the course of a  
fair inquiry involving Professor Anderson and the Union and investigated prior to being placed  
on an employees personal file. I am aware that letters of complaint were not placed on  
Professor Andersons file. However, they were in effect acted upon by the Employer. If  
30  
complaints need to be substantiated before being placed on a personal file, it would be a  
strange result if the Employer was entitled to draw adverse conclusions on the basis of a  
complaint without bringing the complaint to the attention of the employee and the Union  
simply on the basis that the Employer hadn’t placed them on the employee’s personal file. The  
Employer has treated the multiple complaintsas serious allegations of misconduct and as  
such was required to deal with them pursuant to Article 12.  
[78] For the foregoing reasons, I find the April 28, 2021 letter of direction to be void ab initio.  
CONCLUSION  
[79] The above findings make consideration of the remaining issues unnecessary.  
[80] I thank both counsel for their cooperation and helpful submissions.  
[81] Having heard and reviewed all the evidence and verbal and written submissions of  
counsel I find:  
1. The April 28, 2021 letter of direction from the Employer is void ab initio as a disciplinary  
measure in substance, not arrived at in accordance with the Collective Agreement.  
2. The said letter of direction shall be removed from any and all University files where it  
may be situated.  
Dated at Saskatoon, Saskatchewan, this 29th day of September, 2022.  
_________________________  
Eric Cline K.C., Q. Arb.  
Arbitrator  
31  
 [an error occurred while processing this directive]

© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission