'What really came across in this decision was that the employer was unduly influenced by the union'
“Notwithstanding that union leaders represent employees in the workplace and often have opinions as to how an employee should be disciplined, in circumstances where the discipline falls within the scope of the employer’s authority, the employer needs to exercise its discretion independently without undue influence of the union.”
So says Rich Appiah, principal of Appiah Law in Toronto, after an Ontario employer fired a worker for workplace harassment stemming from a union election protest, even though its own investigation found there was no harassment.
The worker was hired in 2006 by Stelco, a steel manufacturer with plants in Hamilton and Nanticoke, Ont. He performed several roles including crane operator, tundish operator, train operator, steel pourer, and quality control.
The worker was active in the union from the beginning. He became a steward in 2008 and one of two assistant chief stewards in steel making in 2011. In 2017, he unsuccessfully ran for treasurer of his local, but he later worker went on to become the chief health and safety representative and chief steward of the local, followed by a posting to health and safety co-chair. The latter position was full-time, so he was released from his regular job duties.
The worker had four incidents of discipline from 2013 to 2020, which remained on his record due to the absence of a sunset clause in the collective agreement. They were a one-shift suspension for “conduct infraction,” a written warning for poor work performance, a four-shift suspension for insubordinate conduct towards a manager, and a five-shift suspension for verbal abuse of a manager. The last two suspensions included warnings that similar incidents in the future would result in more severe discipline up to dismissal.
Union general election
In March 2021, the worker ran for local union president. He narrowly lost and asked for a recount, which didn’t change the results. He then decided to file a protest with the international union office. On April 9, he posted a message on Facebook about his protest and attached a screenshot of the protest document that included the names of union executives involved in the election.
Three days later, the local’s financial secretary made a harassment complaint to the international union office on behalf of the chair of the elections committee – the chair participated in the investigation informally but hadn’t wanted to make a complaint. Three union executive members made harassment complaints to Stelco, so the union and the company conducted a joint investigation under the collective agreement.
The local’s financial secretary also said that the reason for the complaints was the worker’s attitude to women in general, although there was no evidence indicating any issues with the worker’s behaviour towards women.
The election chair and other three union executive members said that they objected to the posting of a union matter on a public forum such as Facebook and it hurt their integrity. Although the complaint on behalf of the election chair alleged that the worker was stalking her, the chair said that he had sent many texts during the election and she didn’t see them as inappropriate. She didn’t consider it stalking, although the worker’s public criticism made her uncomfortable.
In July, the worker apologized for his Facebook post at a special union membership meeting. Union leadership told Stelco that the international union had found that the worker violated its harassment policy, making it a company issue. Members of the local executive, including the worker, took a one-hour harassment training course.
“I'm seeing more and more in labour arbitration cases as well as just-cause cases before civil courts, that the response of a of worker [such as an apology or showing remorse] is an important consideration when determining whether or not just cause exists, and employers have to keep that in mind,” says Appiah.
Employer investigation found no harassment
Stelco’s investigator determined that the harassment complaints were union business and she felt that no discipline was necessary.
However, the union local’s leadership tried to persuade the investigator that the worker was guilty of general harassment against women in the workplace, although there were no specific complaints.
The worker’s supervisor decided that the Facebook post made the matter a workplace issue and there was a problem with harassment within the plant. On Sept. 14, Stelco terminated the worker’s employment. The company called it a culminating incident and alleged that two female employees – including the chair of the union elections committee - were concerned that the worker would retaliate against them for participating in the investigation and they wanted to move to different work areas from him.
The worker grieved his dismissal, arguing that he did not commit workplace harassment. Stelco countered that his Facebook post was “a single act that had a harmful effect constituting harassment because he knew, or reasonably ought to have known, that his post would be, and was, unwelcome.”
A big concern for Stelco was that the worker’s supervisor seemed to accept what he was told by union leadership rather than the investigation findings, says Appiah.
“The main investigator came to a conclusion that the misconduct did not fall within the realm of workplace misconduct even if it was true, because it occurred in the context of a union election process,” he says. “It seems that the supervisor was influenced by allegations made by members of the union leadership without conducting an independent review of those allegations - the primary concern of the arbitrator was that the employer relied on allegations that were not supported by evidence.”
No impact on workplace or employer
The arbitrator found that the content of the Facebook post was focused on the worker’s view of how the union election was handled and how certain supporters of his opponent acted. They had no impact on Stelco’s operations, the arbitrator said.
The arbitrator also found that the worker’s intention was to point out what he felt were irregularities in the election and the protest was a public issue to which he had the right to put forward. Stelco had no reason to interfere with that process, the arbitrator said.
“What was really important, from my perspective, was the fact that the worker did not personally attack any employee of the employer, or any union leadership, in their personal capacities,” says Appiah. “His public commentary in that context couldn't amount to harassment - otherwise, an election, a contest for a public position within the workplace itself, could be considered harassment because it would fall within the realm of unwanted attention that is used to define harassment.”
The arbitrator acknowledged that some in the union leadership didn’t like the fact that the worker made his protest public on Facebook, but there was nothing harassing in his post. The arbitrator pointed to the definition of harassment in the Ontario Human Rights Code and Occupational Health and Safety Act, which both describe it as “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”
The arbitrator said that harassment laws are meant to protect people from “unwanted and unpleasant attention,” not to “shield individuals from criticism in the performance of their public duties.” In addition, harassment is serious conduct, so not every “unwelcome or offensive gesture or utterance” meets that definition, the arbitrator said.
Employer bad faith
The arbitrator also found that Stelco’s investigation was correct when it concluded that it was a purely union matter. When the worker’s supervisor allowed himself to be swayed by members of the union leadership and overruled the investigation’s findings without justification, it was an exercise of bad faith, the arbitrator said, adding that the delay of four months before the termination decision increased the bad faith and showed that there was no real cause for discipline.
“I think that passage of time really demonstrated that there was no irreparable damage to the employment relationship,” says Appiah.
The arbitrator determined that there was no cause for dismissal or any discipline at all. Stelco was ordered to reinstate the worker will full compensation for loss of pay, plus punitive damages for its bad-faith conduct in the dismissal. At their request, the arbitrator left it to the parties to determine the appropriate amount of punitive damages.
It’s important that employers don’t confuse their role and the union’s role in the disciplinary process, says Appiah.
“What really came across in this decision was that the employer was unduly influenced by the union,” he says. “While they certainly are free to get advice from union leadership on discipline, it's the employer’s discretion to make the ultimate determination as to what form of discipline will be enacted, subject to the constraints of the collective agreement, case law, and the grievance procedure - the employer’s first responsibility is to act independently and that wasn't done in this case.”
