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Grievor’s Comments not ‘Harassment’ – Reinstatement Awarded

Western Forest Products Inc., Duke Point Division v. United Steelworkers of America, Local 1 – 1937 (Vanderbasch Grievance), [2016] B.C.C.A.A.A. No. 142 (Coleman).

This case involved the termination of a shop steward for harassment and bullying in contravention of an anti-bullying and harassment policy. The employer alleged the grievor, a forklift driver, harassed and bullied another employee by being abrupt and using expletives while discussing a union matter with the complainant.

Arbitrator Coleman allowed the grievance. He agreed with the union that the grievor was simply communicating the union’s legitimate position; namely that, where appropriate, disputes between fellow bargaining unit members should be handled with a union representative on the shop floor before engaging management in a formal harassment investigation.

The Arbitrator found the complainant lacked credibility after applying the test from Farnya and Chorney (1952), D.L.R. 354 which involves assessing a witness’ version of events with the probabilities that surround the currently existing conditions.

Arbitrator Coleman also found the employer’s investigation into the complaint was seriously flawed. The employer failed to provide the grievor or the union with notice of the allegations, a copy of the complaint , or an opportunity to provide a written statement: at para. 103. As a result, the Arbitrator rejected the employer’s attempt to discredit the grievor on the basis of his behavior during the investigation.

Taking harassment and bullying seriously is important, especially given its statutory designation as a workplace hazard in British Columbia. However, the Arbitrator concluded this was not a case where it was appropriate to label the grievor’s behavior as ‘harassment’. He relied on S v. M,G, Z (1995), 49 L.A.C. (4th) 193 (Laing), which held, at page 31:

I do not think that every act of workplace foolishness was intended to be captured by the word harassment. This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use. It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting. Nor should it be used where there is no intent to be harmful in any way, unless there has been a heedless disregard for the rights of another person and it can be fairly said “you should have known better.”

The evidence showed the use of expletives was common in this workplace and the employer had to be consistent if it wanted to change the culture (at para. 151).

Arbitrator Coleman dismissed the Employer’s argument that the content of the grievor’s communication during the incident was intimidating and would discourage employees from using the harassment and bullying policies.

He concluded there was no cause for discipline and reinstated the grievor.