Toxic work environment 2-way street (Legal View)

Safeway clerk harassed but also contributed to problem: Arbitrator
By Jeffrey R. Smith
|Canadian HR Reporter|Last Updated: 04/09/2013

An Alberta employer failed to ensure it provided a workplace free of harassment for a long-term employee who suffered from depression and poor health as a result of conflict with co-workers, an arbitrator has ruled.

The employee, a 47-year-old bakery clerk, worked at Safeway grocery stores in Calgary over a period of 15 years.

After two years off due to pregnancy and post-partum depression starting in 2006, the clerk was transferred to another store in October 2008, where she was appointed “head girl” of the bakery — a designation given to certain employees who are in charge of scheduling, work co-ordination, priorities and displaying bakery product on time.

Strained relationships with employees at new store

Another employee had been the head girl under the previous manager and she wasn’t happy about the change. Other bakery staff didn’t like the new clerk and talked about her behind her back. They didn’t socialize with her and resisted her instructions, including ripping down or defacing notes she wrote.

The dislike was fuelled by the clerk’s abrasive style, as she talked to them condescendingly, favoured herself in the scheduling of shifts, took long breaks and delegated tasks she could have done herself.

But the clerk spoke to the store manager more than once about the work environment and the stress it was causing her. Though the manager said he would look into it, nothing seemed to be done.

In early 2009, the clerk took a two-and-a-half-month stress leave. The bakery ran smoothly during her absence and when the clerk’s return date approached, the bakery employees spread word about the reason for her leave and told each other to “push her buttons” so she would be off work again.

When the clerk returned to work, her attempts to be friendly were rebuffed and employees did little things the clerk felt amounted to harassment, including moving her time card and writing nasty notes on the schedule. The clerk became stressed and it carried into her home life.

In April 2009, the clerk told the store manager the staff was colluding against her and creating an unhealthy work environment.

However, no investigation was launched. The clerk decided to request a transfer in July 2009, but changed her mind when the only option for a transfer was at a store that she didn’t want to work at.

In October 2009, the clerk had a confrontation with the co-worker she had replaced as head girl. The co-worker became angry and swore at her. The clerk became so upset, she went to the bathroom and vomited.

Afterwards, the other employees shunned her and she went home, later taking one week of sick leave.

Meeting finally called

The manager finally called a meeting on Nov. 24, 2009. The clerk complained she was being bullied and harassed while the co-worker blamed the clerk for the toxic environment, making disparaging comments about her.

The clerk denied the accusations about her behaviour, calling them “a pack of lies.”

She acknowledged telling an employee at another Safeway store that her co-worker was lazy, but felt she was backed into a “me versus them” situation.

Following the meeting, Safeway felt it best to remove the clerk from the situation, so it transferred her to another store. As it turned out, the clerk got along well with employees at the new store and called the bakery staff “fantastic.”

However, she filed a grievance through her union claiming Safeway had failed to provide a healthy and safe work environment at the previous store.

The clerk said her health had suffered — including bouts of anxiety and depression — because her employer hadn’t intervened when it became aware of the toxic work environment.

Missteps from all parties involved

The arbitrator found it was clear the clerk and the co-worker she replaced as head girl didn’t like each other and the co-worker had done things to undermine the clerk.

It was also clear other staff resisted her and further helped to undermine her by “pushing the right buttons” and isolating her.

However, there was enough evidence from various employees at Safeway to support the fact that the clerk was also “a difficult person to work with and placing her in a position of authority as head girl exacerbated the problem,” found the arbitrator.

The clerk appealed to management several times to help her with the problems at the bakery and the store manager was aware of the confrontations that took place, noted the arbitrator.

Management was also aware of the problems when the clerk requested a transfer before rescinding the request and the clerk had expressed her concerns to the HR department and her union representative.

Clerk had history of depression, stress-related illness

The arbitrator accepted evidence the clerk suffered from clinical depression, but noted she had a history of depression and stress-related illness, including stress leave that she took before she transferred.

Her medical history also included a family history of depression.

As a result, the arbitrator determined the clerk’s depression was not caused by the environment at the Safeway store.

As for the work environment, the clerk’s conduct — including questionable scheduling and poor interactions with co-workers — wasn’t appropriate but didn’t amount to harassment, found the arbitrator. It was more the result of “an ineffective head girl with poor interpersonal skills who upset people.”

And while some of the actions of the other workers were minor, others — such as calling the clerk names and violating her privacy by disclosing the reason for her stress leave and encouraging staff to “push the right buttons” — constituted “vexatious acts of retaliation” and incitement of harassment, said the arbitrator.

This behaviour had been brought to Safeway’s attention but the company wasn’t “prompt, diligent and thorough” in dealing with it, said the arbitrator.

By not taking appropriate action, Safeway failed to ensure the health and safety of its employee, the clerk, as her psychological and physical health were undermined by the harassment.

“It may be that the particular dynamics of the situation and the personalities involved would not have led to a satisfactory outcome even with earlier investigation and intervention,” said the arbitrator.

“But, as the authorities make clear, it was the employer’s responsibility to try; instead management allowed the situation to fester with unhappy results for the (clerk) and other bakery staff.”

No reward for poor behaviour

However, the arbitrator declined to order any damages or declaration that Safeway violated health and safety legislation, as the clerk’s behaviour contributed to the toxic work environment.

The arbitrator didn’t want to “reward her for her own poor behaviour.”

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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