In December 2010, the Human Rights Legislation Group met with Dan Langham (Environmental Health and Safety), Adrian Lahey (Human Resources) and Dave Patterson (Campus Security) to discuss the rights and responsibilities of the University and its employees under the recent amendment to the Ontario Occupational Health and Safety Act. Bill 168 amends the Act to include workplace violence, workplace harassment and domestic violence. Click HERE to access the Queen's page on Bill 168. Diane Kelly then presented four recent cases dealing with employers who failed to protect their employees from workplace violence and harassment and Stephanie Simpson presented a case study involving domestic violence in the workplace.
Workplace Violence:
How fast should an employer move to investigate an incident of workplace violence? (Safeway, 2009) Should an employee accused of workplace violence be suspended/removed from the workplace? (Safeway, 2008)
Workplace Harassment:
What is the three-part test for determining whether employers have responded appropriately to a complaint of harassment? (Wamsley) What discipline is appropriate for workplace harassment of a supervisor? (Zochem)
Cases:
Use of physical force places the personal safety of the victim at risk. In vernacular terms, bosses can't hit their subordinates (or anyone else for that matter).
Facts:
A supervisor (Mr. Larock) inspecting a worksite found the area to be covered in dirt and debris contrary to a work order he had given days before. He called a worker (the Grievor) in from his scheduled day-off to discuss the issue. A heated discussion ensued. When the worker argued that he didn't have to be there, the supervisor responded "Well, get out of here!" As he said this, he placed his hand on the employee's upper body and applied just enough pressure to move the worker slightly towards the door. The contact did not cause injury, but it did reactivate pain from an old wound for which the worker had been receiving workman's compensation.
Later that morning, the supervisor attempted to reconcile with the worker, saying "We've worked together for a long time. We're friends" to which the worker responded: "You're lucky I don't put you in jail". The supervisor reported the incident to a human resources manager, who did not follow up until she was contacted by the Safeway Labour Relations Department, one month later. The Department advised her that a grievance had been filed and that she ought to investigate the incident. As a result, the HR manager interviewed the two parties as well as one of two witnesses but failed to track down the second. Four months later, she concluded her investigation in which she found that physical force had been used. Her recommendation was that Larock receive counselling about alternative ways of resolving conflict in the workplace. The employer implemented this recommendation.
The Union then requested a formal apology for its member. In a subsequent meeting, Larock apologized "for what happened" but refused to admit that he had used improper physical force. Unsatisfied, the Grievor then brought his grievance to arbitration.
Issues:
- Did the manager's conduct amount to workplace violence under the Occupational Health and Safety Act?
- Does the Occupational Health and Safety Act form an implicit part of the Collective Agreement?
- Was the employer's response effective?
Decisions:
- Yes
- Yes
- No
Reasons:
- "I find that the use of physical force by Mr. Larock against the Grievor was an act of violence that placed the personal safety of the Grievor at risk. As such, it not only was directly contrary to the company's own policy, but more significantly for our purposes, violated the Employer's obligations under the province's Occupational Health and Safety Act, thereby breaching the collective agreement. It is hard to imagine any circumstance in which the use of physical force by a managent person against an employee would not be considered a contravention of an employer's obligation to ensure a safe workplace, even if the impugned act is in no way condoned. Use of physical force places the personal safety of the victim at risk. In vernacular terms, bosses can't hit their subordinates (or anyone else for that matter). Such behaviour is, by definition, inimical to the safety of the employee on the receiving end. While it is true that the use of physical force by Mr. Larock was isolated, brief, and not very substantial, that does not diminish its seriousness. Any use of physical force by a manager against an employee, no matter how small, infringes on the employee's right to a safe workplace. I see no reason why a singular event would not constitute a violation of the Occupational Health and Safety Act, [...] in the same way that a single act of verbal abuse or discriminatory behaviour has been found to violate anti-harassment and anti-discrimination policies or laws [...]" [para 75]
- "The union's position and authorities supporting the view that the OHSA formed an implicit part of the collective agreement which had been violated was persuasive. Contrary authorities cited by the employer were rejected. There was therefore jurisdiction flowing from OHSA, an implicit part of the collective agreement, to consider the grievance and provide remedies. The use of force by Larock had been an act of violence that had placed the personal safety of the grievor at risk and violated the OHSA, therefore breaching the collective agreement." (page 2)
- The arbitrator found the employer's response to be ineffective. The HR manager did not follow up when alerted by the supervisor immediately following the incident. It only investigated when it was advised to by the Department of Labour Relations, upon the filing of a grievance. Moreover, the time it took to conduct the investigation (4 months) was too long. Although the investigation report found that Larock had used physical force against the worker, and even though Larock was counselled on more appropriate ways to deal with problematic situations, neither the employer nor the supervisor admitted or apologized for the use of improper physical force. Furthermore, the grievor was not compensated for the denial of his right to a violence-free work environment (paragraphs 84-87).
Order:
The arbitrator awarded the grievor $2500 in damages. He used the following factors to make this determination:
- Severity of the Incident. The more serious the incident or incidents of abuse, harassment or discrimination, the higher the award
- Singular event versus multiple events. The greater the number of instances of abuse, harassment or discrimination, the higher the award
- Duration of events. The longer the time period over which the events were repeated, the higher the award
- Consequences to the victim. The greater the psychological or physical harm to the victim, including spill over beyond the workplace, the higher the damages
- Employer's response: The amount of damages are impacted by the effectiveness of the Employer's response once it became aware, or should have become aware, of the abuse, discrimination, or harassment.
Facts:
On Christmas Eve, 2005, two Canada Safeway employees in Alberta got into a heated argument. When the female employee stepped towards the male employee, he reached out, grabbed the brim of her ball cap and pushed her back. The female employee was very upset and reported the incident immediately. The employer investigated the incident and, at the beginning of March, gave the male employee a written warning. When the female employee learned the outcome of the investigation, she filed a grievance. In it, she argued that the employer should have removed the male employee from the workplace and that a warning was insufficient punishment.
Issues:
- "Did the fact that Safeway didn't remove Mr. Fairweather out of the store constitute a failure to ensure a safe workplace for Ms. Pady Shenher a) during the investigation ? b) subsequent to the completion of the investigation and the decision to discipline Mr. Fairweather?" (45)
- Was the discipline sufficient in this case?
Decisions:
- Yes and No
- Yes
Reasons:
- a) "Given the nature of the allegations, and Safeway's initial perception of those allegations, in order to ensure Ms. Pady Shenher was not working in an unsafe workplace Mr. Fairweather ought to have either been moved to another store or suspended with pay, while Safeway conducted its investigation to ascertain whether Ms. Pady Shenher was in fact at risk or not." b) The arbitrator ruled that what Pady Shenher was calling "mental distress" caused by having to work in proximity to a health and safety risk (Mr. Fairweather) was actually only common stress due to an ongoing personality conflict. He determined that Mr. Fairweather did not have to be removed from the workplace in order to ensure Pady Shenher's safety. He did recommend that the employer flag the employees' files and do its best to keep them apart, for the sake of harmony, but refused to order this separation.
- The arbitrator agreed with Safeway that this incident was on the very low end of the scale for workplace violence and that a written warning was sufficient .
A Xerox repairman swatted the buttocks of a female employee of Ed Green Blueprinting. At the time of the incident, the company had no sexual harassment policy but was in the process of developing a workplace harassment and violence policy.
Visibly upset, the grievor complained to her supervisor. The latter, who never received any training in sexual harassment from the employer, investigated immediately. First of all, he talked to the repairman, who admitted that he had indeed swatted the woman's buttocks. Then, to resolve the complaint, he brought the two parties together so that the repairman could apologize to his sister.
The employee was dissatisfied with the way her supervisor had handled the case. Not only did she object to the stressful face-to-face meeting with her harasser, which caused her emotional distress, but also, she was frustrated when her supervisor refused to report the repairman to Xerox or to request that another repairman be sent to Ed Green. Instead, he seemed to belittle the incident, by impressing upon her that the repairman had simply made a "stupid mistake" for which she should not "ruin his life" by reporting him. Moreover, the supervisor did not report this incident to his boss, the owner of Ed Green Blueprinting.
Later on, the employee complained about the sexual misconduct to the owner. The latter took the issue very seriously and encouraged her to go "to the authorities" who would be better equipped to handle such an egregious case. He did not, however, report the respondent to Xerox nor did he take measures to have the copy machines at Ed Green Blueprinting serviced by a new repairman.
In fact, the repairman who had swatted her buttocks continued to service the machines at Ed Green's on a regular basis. The employee was very uncomfortable and upset about having to work regularly in close proximity to the man who had swatted her buttocks.
Issue:
Did the employer satisfy its legal duty to protect the employee from sexual harassment in the workplace?
Decision:
No
Reasons:
The tribunal offered a three-part test for employers in this kind of situation and then applied it to this case. He cautioned that every case is to be determined on its own merits, and that the tests can be applied with a certain degree of flexibility.
1. Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training:
- Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident?
- Was there a suitable anti-discrimination/harassment policy?
- Was there a proper complaint mechanism in place?
- Was adequate training given to management and employees?
2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee
- Once an internal complaint was made, did the employer treat it seriously?
- Did it deal with the matter promptly and sensitively?
- Did it reasonably investigate and act?
3. Resolution of the Complaint (including providing the Complainant with a Health Work Environment)
- Did the employer provide a reasonable resolution in the circumstances?
- If the complainant chose to return to work, could the employer provide him/her with a healthy, discrimination-free work environment?
- Did it communicate its findings and actions to the complainants?
He found that Ed Green Blueprinting had failed to pass any of the three tests. The employer had no policy or complaints mechanism in place at the time of the incident, the supervisor had received no training in sexual harassment, the supervisor failed to report the incident to management; he failed to respond appropriately (by failing to report the technician, by failing to remove him from the workplace) and sensitively (the rhetoric used to persuade the employee not to report the technician). The employer did not provide the employee with a healthy, discrimination-free environment; it failed to take into consideration the employee's discomfort with having to work in the presence of her harasser
Facts:
A worker performing shipping duties (Harvey) was dismissed after two incidents involving harassing behaviour towards his supervisor.
In the first incident, Harvey responded to legitimate criticism about his work performance by raising his voice, slamming his hard hat against a filing cabinet and stamping his foot against a piece of wood, crushing it. The supervisor told him to seek Union representation. When the supervisor followed up on this directive, the worker rushed towards him, jumping over a barrier and yelling profanities.
The second occurred five hours later, when the supervisor met with the worker and the union representative in a disciplinary meeting. In this meeting, the worker was advised that he was being suspended indefinitely for that morning's bout of insubordination. The worker's anger escalated and he began to denigrate the supervisor's ability to perform shipping duties. Following the meeting, on the walkway outside the supervisor's office, the worker picked up a six-foot metal bar, turned around and marched back towards the supervisor's office. The supervisor, who was watching from the window, became alarmed. The Union representative intervened, gesturing for the worker to stop and telling him to think about his kids. The worker dropped the bar, but continued to walk towards the office where the supervisor returned to his desk, intimidated. The worker starred in through the window for a number of seconds but the supervisor kept his eyes on the desk, in order not to provoke him. At a follow-up disciplinary meeting, the worker apologized for his insubordination but justified his actions. He was dismissed.
Issues:
- Do employers have a heightened responsibility to protect workers from violence and violence in the workplace in the wake of Bill 168?
- Did the harassment amount to violence or the threat of violence?
- If termination was too severe, what discipline would be appropriate?
Rulings:
- Yes
- No
- Yes
Reasons:
- The arbitrator agreed : "I agree with Counsel for the employer that it is important to take into account in the process of weighing all the factors the heightened awareness and expectation in society today that employers will take the appropriate steps to protect all their workers from violence or threats of violence in the workplace and to promote a safe working environment. This expectation has recently become public policy through the protection for workers from workplace violence, threats of violence, harassment and intimidation by imposing on the employers the legal duty to develop policy and programs to control the risks of such conduct" (36).
- The Arbitrator ruled that the worker had engaged in "angry, abusive and intimidating behaviour" which escalated over time and culminated in conduct that was implicitly violent and threatening. This insubordination was inappropriate and warranted discipline; even the first incident should have resulted in suspension. However, the overall conduct did not amount to violence (defined as physical contact) or to a direct threat of violence (an utterance of threatening words). Thanks to the intervention of the union representative, "the potential danger of physical harm to Crichlow never got to the point where Crichlow needed to take immediate protective action. These circumstances do not negate the seriousness of the grievor's misconduct but they do not elevate it to circumstances involving the actual used of a weapon where harm was caused or where there was a clear and present threat of immediate harm with a weapon against a supervisor or worker" (34). In other works, "the totality of the conduct here is serious but does not involve physical violence or the immediate threat of physical harm" (page 37).
- For this and other reasons (mitigating factors such as his 16 years of service and clean disciplinary record), the penalty of dismissal was reversed and replaced with that of an unpaid suspension and a conditional return to work. Before coming back to work, the worker was ordered to participate in an anger management program and to write a sincere apology to his supervisor. In the event that the worker participated in "threatening or violent behaviour" upon his return to work, he would be immediately terminated and would have no recourse to arbitration (except to argue the facts).