Our Blog

Our Blog

Dylan Hill
June 1, 2008

'Policy But No Action'

featured image

How the responsibility to investigate impacts the workplace.

Summary

Ed is the CEO of a medium sized family owned manufacturing company. Kyle is an employee with over 30 years of seniority with the company. The allegations are that Ed violated the company’s harassment policy by yelling at and verbally abusing Kyle. The incident stems from the timeliness and quality of improvements made by Kyle to a piece of equipment for a very important customer. Ed and Kyle were in a confrontation about the equipment and Kyle became distraught, reported the incident to his supervisor and then left the workplace for the day. The company did not investigate Kyle’s allegations and he filed a grievance through the union.

The Job

The Company had delivered equipment to an important client and it was returned as defective. The client allowed the Company to attempt to make the issue right by redoing the job. Kyle completed the work and submitted it for inspection prior to being shipped out. The Production Supervisor, Barry inspected the equipment and completely rejected it. Barry told Ed he could not believe the lack of quality with the work that Kyle wanted to submit. The entire job needed to be disassembled and redone which delayed delivery and increased the pressure.

Work Redone

The inspection of the equipment took place at the end of the work day. Kyle, whose work was challenged and was now faced with the prospect of having to redo work, was frustrated. He waved his arms in the air, threw his tools on a work table and told the group that had been assembled to look at the equipment that he did not care and was going to go home and get drunk and forget about it. As it turned out, he did not leave work early that day. Ed was told about the incident, Kyle’s attitude and comments. The work was redone and assembled and Ed decided to inspect it himself before it went out.

Inspection

Kyle said that he came upon Ed and his Manager who appeared to be having an argument. Kyle said he joined them at the location of the equipment and that was when Ed began to be little him. He said Ed was very mad and challenged him about the installation of the equipment. Ed questioned why it needed to be done three or four times and asked why Kyle submitted the previous work for delivery when it was not acceptable. Kyle tried to justify his original work and said that another supervisor thought it looked okay. Kyle said Ed started calling him names including ‘dog f***er’ and accused him of walking around the shop talking on his phone on company time. Kyle said Ed called him a drunk in reference to his comments the previous week. Ed said Kyle was a 30 year man, did not care and did not give a f**k anymore. Ed said, ‘Why don’t the older employees f**k off.’ Kyle responded that he liked his job and wanted to stay. He said the company was lucky to have an employee like him. The Manager intervened and conversation shifted to other topics.

Ed recalled the altercation differently. He said he asked a few questions about the equipment and Kyle became defensive and provided excuses. Ed said that Kyle’s comments about the company being lucky to have him did not go over very well with him. Ed said he replied that Kyle was well paid and that he was paid for every hour.

Ed categorically denied calling Kyle a ‘dogf***er’ and volunteered that he had never used that phrase in his life. He also denied the comments about older employees. Ed admitted to using the ‘f word’ but said that it was not directed at Kyle in particular and claimed they had used the word with each other in the past.

Reported

When the altercation ended, Kyle left and saw his supervisor, Barry. He told Barry what happened and broke down and cried. Barry told him to go home and said they would talk about it on Monday.

Kyle saw Barry on Monday but Barry did not appear to want to talk about the issue. Barry never did get back in touch withKyle. Barry did not pursue the matter further and neither did the Chair of the Workplace Harassment Committee who was aware of the issue.

Hearing

Witness evidence was submitted that Ed had in fact used the term ‘dog f***er’ in a meeting two years previous.

There was no evidence provided of an investigation of any kind into what had happened between Kyle and Ed. Rather, the prime concern by management was the equipment and they continued to remain focussed on that aspect of the issue at the grievance hearing.

Apology

Upon hearing of the grievance, Ed submitted two written apologies to Kyle. However, the apologies continued to maintain that he had not used the language alleged and implied that Kyle had in fact attacked Ed during the exchange, The apologies also focussed on the equipment and the problems in getting the job done. At one point Ed summed his comments during the altercation up as ‘…honest and concise, and never was there any intent to cause Kyle any personal discomfort.”

Kyle testified that he did not think the apologies were sincere.

Finding

The panel found that for the most part Kyle’s evidence was better and more in line with witness information than Ed’s recollection. It was found that Ed indeed used the term ‘dogf***er’ and made the comments about older employees.

The panel found that the altercation did not take place on a level playing field, and that there was a power imbalance present.

The panel also noted that the company did not take any action to investigate the complaint. The fact that Barry was not called as a witness for the employer led the panel to the conclusion that he would have given evidence damaging to the employer.

The panel determined that the comments to Kyle about older employees did constitute harassment on the protected ground of age and also under personal harassment in the company’s policy. The panel sustained Kyle’s grievance by a majority decision.

Dylan Hill
March 1, 2008

'Tightening the Screws'

Grievance of discipline not successful, credibility considered.

Summary

Frank and Tanya worked in a Provincial Government office. Tanya worked with the employer since 2001 and moved to the same office as Frank in 2004. She brought a harassment complaint against Frank in June 2005 which led to an internal investigation and the ultimate discipline (one day suspension) of Frank. Frank started with the employer in 1999 and had previously been “counseled” for his behaviour in the workplace. Tanya moved offices in March 2006 as she did not want to work with Frank any longer.

•The workplace where Tanya and Frank worked had “blind corners” where the hallway turned 90-degrees and people coming from opposite directions would not see each other until the last moment and might bump into each other.

•The employer provided for some of its employees housing accommodations as part of their recruitment strategy.

•A number of questions arose at the Grievance hearing. Was there just cause for disci- pline? If there was, was a one-day suspension excessive?

The Hallway Incident

In March 2005, Frank and Tanya met at one of the “blind corners” in the office. They arrived at the corner at the same time and were only inches away from each other although they did not actually bump into each other.

Tanya said she was startled, took a step back and raised her hands to her chest with her hands closed but not clenched. She said Frank stayed close to her and said “Don’t do that”. She said she told Frank she was sorry and was just startled and he replied, “Next time you do that you’re going to end up with a fat lip.” Tanya said that the way Frank said that made her feel threatened, very uncomfortable as he was in her “personal space”. She said she feared for her safety.

Frank said Tanya would often “posture” when she almost bumped into people at corners by taking an aggressive stance. He said he told her in the past that she should not be posturing like that and she had replied that she could not help it.

Frank confirmed that they had nearly bumped into each other. He said she had taken a step toward him and raised her fist as if to strike him. He said he thought of someone else’s reaction and told her, “You can’t be doing that. One of these times you are going to get a fat lip.” Frank said he made the comment in a light-hearted manner and had been smiling.

Frank went to his office and immediately emailed the Human Resources Representative. He asked how to handle the situation while providing limited details. He wrote,“We have a situation here in which a female employee makes a threatening gesture to strike male employees. What she does is raise her clenched fist up in a punch position and lunges towards the person…What is your advice?” The Representative indicated it was inappropriate for an employee to make threatening gestures and asked for more detail twice. Frank did not provide any more detail.

After getting the advice he was looking for,Frank confronted Tanya thee next day and said that he had spoken to HR who agreed that her behaviour was inappropriate and he told her she had to stop it immediately. Tanya asked him to leave her office, he did not and she said,“F***off. Get out of my office and don’t speak to me again without your supervisor.” She later apologized for swearing at him.

Tanya reported the incident to management at the workplace who advised her that it was no big deal and said she should ignore Frank and he would go away.

Frank went on two weeks of vacation and when he returned had a meeting with management about the hallway incident. They told him that he had acted appropriately.

The Phone Call Incident

Tanya and Frank lived close to each other in the employer provided housing. About three months after the hallway inci- dent, Frank became upset that Tanya had some people over to her house and had been making noise at 11:00 p.m. He had told her when she moved in that he considered “quiet time” to be at 8:00 p.m. which was when he preferred to sleep.

One morning, Tanya’s home phone rang at 4:30 a.m. The caller hung up but she could see from the caller ID that it had been Frank. Fearing an emergency, she called his number and he picked up but did not talk, then hung up. She went back to sleep and her phone rang again at 4:53 a.m. Again, the caller did not speak but hung up and again she noted that it was Frank’s number.

The next day Tanya spoke to management about it. They told her that there was nothing they could do about the situa- tion because it had occurred outside the workplace.

The Grievance Hearing

During the grievance hearing Frank admitted to making the calls and said he did so to teach Tanya a lesson as she had been making noise the previous evening. He said he wanted to give her an idea of what it was like to be without sleep.

Frank explained himself by saying “… changing behaviour is to start slowly by tightening the screws until an appropriate response.” He claimed this ‘graduated response’ had been taught to him at the company training courses he had attended.

The grievance was dismissed.

Reasoning included that while Frank said he made the comments in the hallway in a lighthearted manner, his behaviour contradicted that (immediately emailing HR). His description of the physicality of the incident was also seen to be not as credible as Tanya’s.

The arbitration panel commented “We are satisfied that the Griever’s conduct against his co-worker…in making the early morning phone calls, amounted to intimidation, harassment or inappropriate conduct towards a co-worker. The Greivor’s own evidence about “tightening the screws” confirmed continuation of a deliberate, planned course of conduct against a colleague who had to work with him daily in close proximity at the office.”