Recent arbitration decisions from the east coast to the west have confirmed that context is king when it comes to workplace harassment. In each case, the issue was whether an employer had just cause to terminate the employment of an individual accused of workplace harassment. Each of the arbitrators engaged in a highly contextual analysis, considering factors such as the industry in which the employee worked, the employee’s prior record and the presence or absence of provocation in ultimately determining that the individual’s employment should be reinstated. This was so even though the employee in one of these cases committed an act of workplace violence.
Workplace Foolishness Not the Same as Workplace Harassment on Construction Sites
The first case is LIUNA, Local 1208 and Construction Labour Relations Assn. of Newfoundland and Labrador, Inc., Re, 2020 Carswell Nfld 281, a recent arbitration decision from Newfoundland. The case involved a construction company that terminated the employment of a worker after an altercation involving another employee in the lunchroom at the hospital construction site. The worker tripped over the other employee’s hard hat, got annoyed and gave it a kick to the side. The other employee got upset, and the worker responded by stating to her that there was a dry room for a reason, and that the other employees had “bitched and whined when there wasn’t one”.
The arbitrator concluded that the worker’s actions caused anxiety and distress to the other employee and others in the lunchroom but did not rise to the level of harassment. Interestingly, the arbitrator set the tone for her analysis by noting that, in the context of a construction job site, “profane language and even lewd jokes are not uncommon” and “[t]he use of such language alone would not constitute harassment”. The arbitrator also emphasized that the word “harassment” was not meant to capture every act of workplace foolishness, where the harm, by any objective standard, is fleeting. It should only be used in situations where there is an intent to be harmful or there has been a heedless disregard to the rights of another person and it can fairly be said “you should have known better”.
Here, the arbitrator concluded that the worker should have known better, but a lesser penalty would have been appropriate considering, among other factors, that his record was clear prior to the incident. Accordingly, the arbitrator substituted for dismissal a verbal warning and directed that the worker be compensated for all lost wages.
Factors in Determining Whether the Discipline of Discharge is Excessive
The second case is West Fraser Logistics and TC, Local 31 (Major), Re, 2020 Carswell BC 3200, a recent arbitration decision from British Columbia. The employer, an ocean container loading facility, dismissed the grievor following a physical confrontation with a co-worker. The grievor was employed as a “hustler”, responsible for the sequence of loading. The confrontation occurred after another employee interjected himself into the grievor’s loading plan, directing a container to go to a different bay than the grievor had directed. The grievor asked the employee “what the hell are you trying to do now” and flicked his cigarette. The other employee then chest bumped the grievor, who lost his footing and smacked the other employee with an open hand.
The employer terminated the grievor, citing the physical confrontation, as well as the grievor’s aggressive conduct and comments towards the same co-worker (the flick of the cigarette and the aggressive question), which the employer alleged were a violation of the workplace harassment policy. With respect to the latter conduct, the arbitrator concluded that neither the cigarette flick nor the aggressive question was sufficient to justify the employee’s termination. There was no evidence that the grievor had flicked his cigarette in the direction of the other employee and, even if he had, this did not amount to a serious violation of the policy. In addition, given that the other employee had wrongly interfered with the loading plan, the grievor was entirely justified in challenging him sharply and demanding to know what he was up to. This did not constitute a violation of the workplace harassment policy.
With respect to the actual physical altercation, the arbitrator found that the “slap administered by the grievor must be placed in its proper context”. The arbitrator considered the following factors, among others, in determining that the discipline of discharge was excessive: the other employee initiated the conduct; the altercation was a momentary flareup; the grievor was provoked; he had an otherwise clean disciplinary record; and he had apologized for the incident. As a result, the arbitrator substituted a six-week suspension for the dismissal.
These decisions make it clear that context can never be ignored, even in cases where workplace violence is involved. Employers must investigate allegations of workplace harassment with a full and fair approach, ensuring that whatever decision they reach is informed and the discipline applied is reasonable and proportionate in the circumstances.
