‘Mobbing’ behaviour of 3 male workers at female co-worker on track maintenance crew beyond ‘boys will be boys’ justification: Arbitrator
An arbitrator has upheld the firing of three male Canadian National Railway workers who harassed and bullied the lone female worker on their crew.
Carol Thomas was a track maintenance employee for Canadian National Railway Company (CN) in Saskatchewan. In May 2017, Thomas returned to work after being away on medical leave for nine months. She was assigned to a railway track crew that included track foreman Christian Hydemaka, assistant track foreman Michael Siebeneich, and machine operator Joel Hrycyk.
Soon after she joined the crew, Thomas was in a truck driven by Siebeneich on the way to a worksite. During the drive, Siebeneich was on his cellphone texting and using social media while expressing anger at his job and co-workers. Thomas was worried about him texting and driving, but was afraid to say anything to him because he was already angry.
Taunting after complaint
Afterwords, Thomas mentioned this to the assistant track supervisor to whom the crew reported, hoping he could tell Siebeneich to not text and drive, without mentioning her involvement. However, the next day she was riding in the back seat of a truck with the crew when Hrycyk — in the seat in front of her — tapped a knife on a metal box between the seats, called her a snitch, and said “snitches get stitches.” According to Thomas, all three of her crewmates began repeating the phrase.
Later, when they were all in the truck again, Hrycyk faced her with his knife in his hand and repeated, “snitches get stitches.” Thomas told him to f--- off and they exchanged more profanities. Hrycyk brought up the phrase a third time later in the truck, while gesturing with his knife. Thomas later said she didn’t feel she was going to be stabbed but felt threatened to keep her mouth shut when working with the crew.
On June 9, the crew was working on a segment of track when Hrycyk told Thomas he found an arrowhead. Thomas had earlier expressed a hope she would find an old arrowhead when they were in the field, but Hrycyk had actually picked up a sharp rock. Hrycyk told Thomas to bring her wrist over and Thomas laughed at him. Siebeneich, the assistant foreman, told Hrycyk to make sure he cut lengthwise instead of across to “do the job properly.”
Thomas once again approached the assistant track supervisor later, who brought matters to the track supervisor. The supervisor decided to meet with the full crew informally to discuss the matter at a rock pit out in the field. Siebeneich said he had just been joking about Thomas slitting her wrists, but Thomas observed that Hrycyk was “so angry he was shaking.” The track foreman, Hydemaka, said Thomas had been joking and laughing and she should have said something if it bothered her.
Thomas was surprised and upset the supervisor handled the matter with an informal, impromptu meeting in the field and felt she had been put on the spot. She took the next two days off work and spoke to a counsellor she had been visiting about concerns returning to work.
On June 20, Thomas emailed an official complaint to the assistant supervisor detailing the three “snitches get stitches” incidents and the sharp rock incident. She said she felt “intimidated, bullied, and threatened” and that she “had to remain silent in order to maintain a congenial workplace at my expense.” She stated that she had tried to tell the assistant track supervisor about it, but it wasn’t handled properly.
Thomas also complained about the culture, attitudes and behaviour at CN and how harassing, inappropriate behaviour had become normalized. She said she was upset that the men on her crew don’t think what they did was wrong and the “boys will be boys excuse is just not acceptable to me anymore.”
Thomas went off work and received workers’ compensation coverage for the mental stress from the harassment. CN investigated and terminated the employment of the other three crew members “for your conduct involving participating in threats of and harassment toward” Thomas. The three men were also charged criminally after police investigated. Hydemaka voluntarily entered into a peace bond while the other two had their charges withdrawn in exchange for alternative measures — a deal that required them to accept responsibility for “the act or omission that forms the basis of the offence” but couldn’t be used against them in civil or criminal proceedings.
The union grieved the dismissal of the Hrycyk, Hydemaka, and Siebeneich, pointing out the peace bond and alternative measures did not mean they admitted to harassing Thomas.
The arbitrator noted that CN had a legal obligation under the Canada Labour Code and the Occupational Health and Safety Regulation to protect the health and safety of its employees. CN also had a policy prohibiting harassment by employees of other employees. The railway also had a policy against workplace violence, which included threats or gestures “than can reasonably be expected to cause harm, injury or illness.”
The arbitrator found that though Siebeneich denied knowing Thomas complained about his driving and cellphone use, it was likely the assistant track supervisor talked to him about it and he knew it was Thomas who complained, hence the “snitches get stitches” remarks. And though all three men said they used that term before Thomas joined their crew and they were joking, the arbitrator found this an attempt to explain away the incidents and was a self-serving rationalization.
As for the sharp rock incident, the arbitrator found that Hrycyk telling Thomas to give him her wrist wasn’t an appropriate joke, though it was likely he meant it in jest. In addition, it was possible the comment about lengthwise cutting, not widthwise wasn’t directed at her, though it was understandable she could have interpreted it that way. While not necessarily intended as a threat, the crew’s behaviour wasn’t appropriate for the workplace, said the arbitrator.
The arbitrator determined CN had just cause to discipline the three men, particularly Hydemaka — who may have been least involved, but as the foreman did nothing to intervene and participated in the “snitches get stitches” comments. In addition, none of them had a “bank of long term service to draw upon” — Siebeneich had 10 months of service and the other two three-and-one-half years — they showed no acceptance or understanding of their misconduct, even trying to rationalize it, and they violated CN policies. As a result, the grievances were dismissed and the dismissals upheld.
“This is not a situation amenable to say ‘boys will be boys’ explanation. I suspect each grievor, individually, is capable of more maturity than they exhibited collectively,” the arbitrator said. “However, the fact they acted in concert and in a ‘mobbing way’ adds substantially to the gravity of the offence.”
For more information see:
• Canadian National Railway and USW, Local 2004 (Hrycyk), Re, 2019 CarswellNat 523 (Can. Railway Office of Arb. & Dispute Resolution).
