Even if worker isn't the target, 'it doesn't insulate the incident from… bullying and harassment'
An arbitrator has ruled that a British Columbia worker who suffered a mental injury following a physical altercation between two owners was subject to harassment that wasn’t properly investigated.
“Employers need to make sure events are viewed through a neutral lens, because what began as a dispute between ownership group members led to the worker getting pulled into it,” says Jessica Fairbairn, a labour and employment lawyer at Harris and Company in Vancouver. “Even where [the worker] isn’t the target of the dispute, it doesn't insulate the incident from giving rise to the employee being subject to bullying and harassment.”
The worker was employed at the Nico Wynd Golf Club in Surrey, BC, as a lead hand for the club’s restaurant since October 2022. Her duties included hiring, training, and supervising restaurant staff.
The golf club was operated by the Strata Council, which consisted of several owners who lived in residences adjacent to the golf course.
One of the golf club’s owners, KK, regularly drove his golf cart to his home nearby to unload his clubs after a round before returning and having lunch with his tee time group.
The president of the golf club didn’t like this practice as it was against golf course policy. He was also frustrated with two complaints that KK had filed against him and the council.
Confrontation at golf club
On Aug. 24, 2023, the president told KK he wasn’t allowed to drive the cart to his home. KK drove around him and took the cart home. When KK returned to the clubhouse, the president was in the restaurant ordering lunch. The worker was behind the counter taking his order.
KK told the president to move so he could drop off the cart key. He then swore at the president and pointed at him. The president grabbed KK’s arm, pushed him away, and grabbed KK’s throat.
KK yelled to “call the cops” and the worker told the president, “Stop! This is wildly inappropriate.” The president stepped back and the worker extended her arm between the two men.
The two owners moved face-to-face with each other before KK left for the patio, saying “Sorry about the ruckus.” The president said, “Sorry about that, guys” and tried to speak to the worker, but she didn’t engage with him.
The worker took food to a group on patio and the president tried to get her attention from his table. When the worker went back inside, she called the general manager and recounted what had happened. The manager told her there was “a lot of drama” between the two men and she shouldn’t get involved.
Worker felt intimidated
A short time later, the president again tried to talk to the worker, telling her not to get involved or call the police. He followed her into the work area as she collected food orders and then waited at the bar.
The president continued to tell her to stay out of it and the worker told him he was wrong and shouldn’t have done what he did. The worker then went to the washroom and the president followed her and stood outside the doorway, continuing to speak to her.
The worker called the general manager again, who said that she had spoken to the president and she believed that KK had been the instigator. The worker disagreed, saying the president was too aggressive. When she told the general manager about the washroom incident, the general manager didn’t believe her and told her to “carry on.”
The worker finished her shift and went home, but KK later decided to call the police. When the police arrived at the golf club, the general manager wasn’t there, so an employee called the worker. The worker decided to return to the club to speak with the police, but the president instructed the general manager to order her not to come. However, the worker decided to continue because the employee wasn’t in a position to deal with the police.
When the worker arrived, the president told her aggressively to go home. After speaking to the police, the worker went outside and the president swore at her and told her to get out. The worker burst into tears as she walked away.
The worker called the general manager a third time, who said that she had told her not to go back to the club and not to get upset over some “silly drama.”
Mental injury, medical leave
When the worker returned home, she was crying, shaking, and vomiting. She later saw a doctor who advised her not to go to work and made a report of a workplace injury – diagnosing adjustment disorder from workplace intimidation - to WorkSafeBC, which investigated and recommended that the Strata Council should investigate similar situations and suspend anyone involved until an independent investigation was completed.
The golf club didn’t take any steps to deal with the president or KK, despite it having a harassment and bullying policy requiring the general manager and a member of the Strata Council to investigate a report of harassment or bullying.
The worker, who was on medical leave and receiving workers' compensation benefits, filed a grievance alleging harassment, intimidation, and the creation of an unsafe work environment.
The golf course put itself in a problematic situation by having individuals who were acted as owners and managers but also lived onsite with their personal business bleeding into the workplace, according to Fairbairn.
“It’s a complex living and working environment that really requires an employer to take a step back when these types of issues come up to make sure that they're handling it properly from a process perspective,” she says. “And the [general manager] seemed to be embroiled already in some pre-existing disputes between the Strata owners and wasn’t viewing what's happening through a neutral or unbiased lens - not taking the health and safety risks seriously, and that poisoned the rest of the process.”
Deliberate harassment
The arbitrator found that the president’s actions constituted harassment, noting that he had instigated the confrontation. When the worker intervened, she became the target of the president’s attempts to influence her account of the incident, actions which the arbitrator described as deliberate harassment.
The arbitrator determined that the president’s behaviour, along with the general manager’s failure to support the worker and being a “compliant accomplice” of the president, created an unsafe work environment in violation of the collective agreement’s anti-harassment provision.
The arbitrator also found that the employer had harassed and intimidated the worker and then failed to conduct a proper investigation to determine what was needed for a safe workplace following the incident of physical violence.
The golf course should have responded immediately when the worker reached out to the general manager, says Fairbairn.
“The response to any employee who's raising a concern of potential bullying and harassment in the workplace is to respond empathetically and let them know that you take their concerns seriously, that you have a policy and a process that's going to be followed, and to consider whether or not the employee is safe and able to remain at work during the investigation,” she says. “And then appoint an unbiased investigator and get moving on the investigation as quickly as possible in the circumstances - that should have happened within a few days of the complaint.”
Injury to dignity
The arbitrator declined to order punitive damages or compensation for lost wages, noting that the worker was already receiving workers' compensation benefits and the golf club’s conduct didn’t meet the threshold of malicious conduct.
However, the golf club was ordered to pay “substantial compensatory damages for the injury to dignity, pain and suffering” the worker endured from the harassment, directing the union and the golf club to determine the amount.
“Bullying and harassment is serious, and the employer in this case downplayed the significance of the interactions that occurred, but the arbitrator ordered compensatory damages for injury to dignity, pain and suffering,” says Fairbairn. “In a circumstance where an employee may not have received wage loss benefits through WorkSafeBC and was without wages during their leave while the investigation was ongoing, the employer might also be responsible for lost wages - some pretty significant financial consequences for an employer.”
Fairbairn notes that there has been an increasing number of cases where employers are dinged not just for employee-on-employee harassment, but for harassment from other sources.
“In this case, the altercation was between members of the ownership group, but had they just been bar patrons and engaged in a dispute and brought the worker into it, I think we'd see a similar finding from the arbitrator,” she says. “Sometimes employers can put blinders on, but we’re seeing more adjudicators looking to harassment from members of the public, so employers need to put their mind to what steps need to be taken to protect employees from all sources of harassment.”
See SEIU, Local 2, Branch 244 and Strat Corp. NW1378 (Anderson), Re, 2024 CarswellBC 2419.
