'The bullying is likely going to get worse, and the employer needs to step in immediately'
“Dealing with bullying in the workplace is an absolute must for employers, and whenever something sparks their attention as bullying, they have to stomp it out right away.”
So says Charles Millar, a partner with employment law firm Achkar Law in Toronto, after an arbitrator upheld the termination of a worker who engaged in targeted workplace harassment and bullying of a fellow employee.
The worker was a grinder fitter for ESCO, a producer of metal parts for heavy industry. Hired in 2017, his job duties involved shaping and smoothing metal parts. He had one verbal warning on his record.
ESCO had a code of conduct that prohibited harassment and bullying and had zero tolerance for safety infractions. All employees, including the worker, were trained on the code and other policies.
The worker was friends with another grinder fitter who worked on the same shift, but they had a falling-out. In August 2022, the worker criticized the co-worker for not helping to carry cases of water bottles into the plant, which led to a heated argument.
The worker and other grinder fitters worked in booths that each had walls that were several feet tall and were open on one side, with tools hanging on a board. Each grinder fitter painted their tool handles a particular colour. The co-worker’s tools were usually painted blue.
Workplace bullying
In late September 2022, the co-worker took the day off and the worker was asked to work in the co-worker’s booth instead of his normal booth, which was beside it. When the co-worker reported for work the next day, his tools were painted pink and someone told him that the worker had done it. Pink was the last colour he would paint his tools, but he didn’t report it, hoping that nothing further would happen.
However, a couple of days later, sparks were sprayed over the wall of his booth from the worker’s booth for an entire shift. The co-worker believed it to be deliberate, because usually sparks generated by the grinders hit the wall of the booth. If sparks accidentally went over the wall, it would be obvious and the position could be adjusted.
The co-worker complained to the HR department that the worker was harassing him. ESCO investigated by interviewing the worker, the co-worker, and other employees. The company was concerned because the sparks incident raised safety concerns, as the sparks could burn bare skin.
The worker denied painting the co-worker’s tools, suggesting that he might have used pink paint to mark latch bars he was grinding, but he didn’t say that the tools were already painted pink when he started working in the co-worker’s booth. Another employee said that he smelled strong aerosol paint – not paint used by grinder fitters – and saw the worker come out of the co-worker’s booth carrying a can of pink spray paint. He also saw a cloud of pink paint dust come out of the booth. A few minutes later, he saw that all the tools in the booth were painted pink.
The worker also denied intentionally spraying sparks at the co-worker’s booth, saying the grinder was too heavy to do it for an entire shift. However, another employee said that the grinder wasn’t as heavy as the worker claimed and could be shifted more easily.
Investigative interviews
ESCO also learned that the word “MERK” – a gamer word meaning to destroy or annihilate - was painted on an employee’s locker and a chair in the lunchroom where the co-worker normally sat. The co-worker shared a video of the worker painting the same word on a bridge when they were still friends. The worker denied painting the word in the workplace, but acknowledged painting it on the bridge a few years earlier. He also said the word had been painted around the plant as a joke to create work for a cleaning employee a few years ago.
ESCO terminated the worker’s employment on Oct. 24 for bullying and harassing the co-worker, contrary to the code of conduct. The company cited three reasons for the dismissal: painting the co-worker’s tools pink, directing sparks at him during a shift, and painting the word “MERK” on a locker and chair.
ESCO was well-positioned in the way it handled the complaint and leading to the termination decision, according to Millar.
“They had policies in place, they made sure that safety was at the forefront, they trained people on it, and they also had a policy of zero tolerance of harassment and bullying,” he says. “When they learned about the harassment and bullying, they investigated it quickly – there were two levels of interviews with multiple witnesses and lots of notes taken, which were relevant because the worker contradicted himself based on the notes that were in the employer's report.”
The union grieved the termination, arguing that the claims weren’t substantiated. In the alternative, the union contended that termination was excessive. The union also pointed to a copycat incident in which other tools were spray-painted pink, saying ESCO condoned this type of behaviour. ESCO said it wasn’t aware of this incident.
Deliberate act of humiliation
The arbitrator found that the worker committed two of the three acts of misconduct alleged by ESCO. The accounts of other employees and the circumstantial evidence supported the finding that the worker was responsible for painting the co-worker’s tools pink, which was a deliberate act meant to humiliate and upset the co-worker, said the arbitrator.
The arbitrator also found that the worker directed sparks at the co-worker over the wall of their adjacent work booths during a shift. While the co-worker’s personal protective equipment prevented injury, the arbitrator determined that the act was intentional and constituted a violation of ESCO’s safety policies.
However, there wasn’t sufficient evidence or any witnesses to prove that the worker painted the word “MERK” on a locker and chair, despite the video of the worker painting it another time, the arbitrator said.
The arbitrator applied the William Scott principles – is there just cause for discipline, was discharge excessive, and if the discharge was excessive what alternative measures are appropriate - to assess the appropriateness of the penalty. The tool painting and sparks incidents occurred within a week of each other, suggesting escalating behaviour and that both actions required planning, the arbitrator said. In addition, the sparks incident raised safety concerns, adding to the seriousness of the misconduct, said the arbitrator, adding that the worker denied the incidents entirely and failed to take responsibility for his actions.
The first two William Scott principles were what mattered here, says Millar.
“The sparks incident was a safety violation and, although the painting incident wasn't safety-related, it was deliberate and planned bullying,” he says. “Any form of workplace harassment is serious, and the worker did something that deserved punishment – but the two separate acts of harassment and bullying, one of them having safety consequences, led the arbitrator to find that termination wasn't excessive.”
Targeted harassment, bullying
The arbitrator determined that the worker’s conduct amounted to targeted harassment and bullying with no provocation and the absence of an apology diminished confidence in the ability to restore the employment relationship.
The fact that the bullying was targeted at one person made it more serious, says Millar.
“If you have a bully who's bullying everybody, you still need to get rid of them, but the targeting of one person seemed to indicate that he had a bone to pick,” he says. “The employer has a duty to keep the targeted employee safe from harassment, as there’s a heightened sense that the bullying is likely going to get worse and the employer needs to step in immediately and send a message.”
Safety and deterrence were also big factors making termination appropriate, according to Millar.
“The worker was unapologetic, lying, and caused safety concerns, and the employer said, ‘You're fired, get lost’ - that sends a powerful message to other employees, and it should send a powerful message to employers that if an employee is intentionally causing safety concerns and endangering others, you have an obligation and grounds to discipline them accordingly, and that could lead to termination in certain circumstances,” he says.
The arbitrator dismissed the grievance, determining that ESCO had just cause for termination.
Millar points to the fact that ESCO had detailed policies in place and immediately conducted a thorough investigation as key to the company’s success in upholding the termination.
“If ESCO didn't act quickly, then the co-worker who was being bullied might have brought a claim against the employer for condoning an unsafe and harassing environment,” he says. “But because it acted quickly and decisively, it won this case and they likely are going to prevent further instances of bullying - there was a copycat incident that looks like isn’t going to happen again because they saw what happened to the worker.”
