Worker’s claim of ‘psychological violence’ from co-workers, supervisors following sexual harassment complaint unfounded: Arbitrator
A Northwest Territories corrections officer who claimed bullying she experienced after she filed a sexual harassment complaint led to her decision to resign has had a workplace violence complaint dismissed by an arbitrator.
The worker was hired in December 2010 to work on a casual basis as a correctional officer at the Fort Smith Correctional Complex (FSCC), a correctional facility housing both male and female inmates in Fort Smith, N.W.T. She later became a relief correctional officer at the FSCC.
The female unit at the FSCC was in a duplex across a field from the male unit. The deputy warden’s office was in the female unit and the warden’s office was in the building with the male unit. The male unit building also contained wet cells — cells with self-contained bathroom facilities used to house high-security inmates of both sexes. Female corrections officers were assigned to both the male and female units, but the female unit only had female officers and a female inmate in a wet cell had to be supervised by a female officer.
In August 2011, the FSCC adopted a policy aimed at making its workplace respectful and free of harassment. Six months later, on Feb. 20, 2012, the worker filed a sexual harassment complaint under the policy against a co-worker.
The FSCC looked into the complaint and found there was enough initial evidence, so it launched an independent investigation nine days later. The investigation determined that the complaint was substantiated. The harasser was suspended for one week and prohibited from duties that required him to go to the female unit where the worker worked.
Things changed after harassment complaint: Worker
Not long after the worker filed her complaint, she claimed four co-workers and supervisors — including the acting deputy warden and a female supervisor in the female unit — began treating her differently. When she asked about something, she was told to “go figure things out” and she had a significant amount of work given to her. She also told the acting warden about the difficulties she was having, but he told her there was nothing he could do and she “needed to get over it so she could resume shifts.”
After her harassment complaint, the worker wasn’t assigned duties in the wet cells in the male unit, but she had to go to the building to attend an occupational health and safety meeting. While there, she saw her harasser walk by and look at her through the meeting room’s window. After the meeting, the deputy warden said to her, “you can come over for a meeting but can’t do a shift?”
The worker said she encountered her harasser several times, even though they weren’t supposed to be near each other — usually when he returned meal pans or trays to the female unit, where a kitchen was. The worker reported these instances to her supervisor, but there were no witnesses.
The worker’s problems with her supervisor in the female unit included — according to the worker — ignoring her questions, telling her she wasn’t allowed in the office when the supervisor was on shift, remarks about the worker “not pulling her weight” because she didn’t escort female inmates to the wet cells in the male unit, and telling her she was “useless on shifts.” Shortly after the report of the harassment investigation was released, the supervisor told the worker to go to the wet cells. The worker claimed when she said she wasn’t supposed to go over there, the supervisor told her if she didn’t she would be terminated. The worker claimed she encountered her harasser and informed the acting warden, who instructed the supervisor not to give the worker such assignments — though as it turned out, the harasser wasn’t at work that day.
In mid-June 2012, the worker had to go to court in Yellowknife because of a domestic assault by her common-law partner. Her supervisor came to court and the worker claimed she sat beside her, but the supervisor said she sat in the back. During the session, the supervisor was texting on her phone about the court appearance, said the worker. The supervisor said she went to court for support, but denied sitting beside the worker.
The worker felt she had had enough and told the acting warden she was going to resign due to stress in her personal life, which had culminated in the domestic assault from her partner. The warden testified she didn’t mention any workplace issues at the time, and asked her to take stress leave instead of resigning. The worker agreed, going on leave from June 11 to Sept. 4, 2012.
After the worker returned to work, things didn’t get any better for her. She broke her arm during an outdoor training course in December 2012, but the acting deputy warden told her co-workers her common-law partner broke it in a domestic dispute. Two fellow corrections officers with whom she had previously got along no longer spoke to her. Her harasser sat for hours at a location near her house to retaliate against her for her complaint, but the harassment investigators had told her not to call the police because it was an internal matter and the harasser hat been sitting on public property. Overall, the worker felt “unsafe, criticized and worthless.”
On Jan. 25, 2013, the worker presented a letter of resignation that indicated in the 11 months since she filed the harassment complaint, she had been repeatedly bullied and targeted by “vicious rumours.” The worker also said in the letter that two supervisors “have been extremely difficult to work with since the incident and have been the main two individuals who have caused most of the issues for me… Since the date of reporting original incident I have had a target on my back.” She also said she had been told not to discuss her complaint, which she thought meant should couldn’t seek counselling.
Following her resignation, the worker, through her union, filed a grievance claiming she was a victim of workplace psychological violence.
Credibility issues
The arbitrator had some issues with the worker’s credibility. At the health and safety meeting in the male unit, it turned out there was a brief encounter between the worker and her harasser, but the deputy warden quickly ushered the harasser to another area. There were no witnesses to the worker’s claim of encountering the harasser several times — particularly since the harasser wasn't supposed to be coming to the female unit — and the one time she had to escort a female inmate to the wet cells, the harasser wasn’t working that day.
The arbitrator also heard evidence from witnesses supporting the supervisor’s account of the day in the courtroom — she sat at the back of the room, not beside the worker. In addition, the use of cellphones was prohibited in the courtroom, so it was unlikely the supervisor was texting about it, said the arbitrator.
The arbitrator found that the allegations of workplace violence in the worker's letter of resignation were unsupported by any evidence and her claims of being treated differently and encounters with her harasser were exaggerated. The FSCC lived up to its obligations following the sexual harassment complaint and the worker’s personal problems combined with the harassment complaint likely contributed to her stress and decision to resign, said the arbitrator in dismissing the worker's complaint.
“I believe all that could be done for (the worker) at her workplace was in fact done including ensuring that (she) was kept away from (her harasser), notably evidenced by the fact that she was not assigned to the male unit for any tasks such as wet cell duty,” the arbitrator said. “(The worker) may have been subject to occasional taunting by her co-workers after the sexual harassment investigation was completed, such as for being excused from having to escort female inmates to the wet cells. But these kinds of comments are typical of those that occur in any institutional workplace and do not amount to bullying or violence within the meaning of… the collective agreement.”
For more information see:
• Northwest Territories (Minister of Human Resources Government) and Union of Northern Workers (MacLeod), Re, 2018 CarswellNWT 41 (N.W.T. Arb.).
