Workplace was full of gossip and rumours; employer relied on hearsay to determine worker was responsible
An Alberta arbitrator has overturned the suspension of a worker singled out for harassment of a co-worker in a gossip-filled work environment.
The worker was employed with Federated Co-operatives (FCL), an Alberta-based company that operated a food warehouse. The worker, a forklift operator with 14 years of service, was one of about 20 employees of Filipino background employed at the warehouse.
FCL had a harassment policy that prohibited “any unwanted, unsolicited, and offensive behaviour, comments, displays, or other verbal, physical, written or electronic contact by a person that is directed at an employee that does, or is likely to cause, offence or humiliation to any employee” including derogatory comments.
Complaint led to investigation
On Nov. 17, 2011, FCL received a written incident report from a female employee complaining about four incidents over the previous week of tampering with one of her tools, a powerjack. The report didn’t identify a culprit, and FCL began an investigation
FCL found more incidents of tampering and potential harassment by the worker and others, so it expanded the investigation, though there were no formal harassment complaints filed. The worker wasn’t advised he was being investigated for harassment.
Several employees were interviewed over the next few months, including the worker, who reported an incident between himself and the employee who complained of tampering. By March 2012, the investigation was focused on the worker, though it stalled for a while.
In July, FCL was told the worker had used foul language in discussing another employee, and that same employee said the worker and other Filipino workers made inappropriate comments about the female employee who had made the tampering complaint.
Through interviews with various employees, FCL heard that the worker had suggested a co-worker – the same one he had talked about using foul language – had sabotaged his equipment by putting a piece of metal on it, and made threatening phone calls to him. The worker had also reportedly made a comment to the female employee about her “disturbing ugly face” in February 2012; made comments to others about the female employee including inappropriate sexual references; blocked warehouse aisles with his forklift when the female employee tried to pass through; and called another female employee a “bitch.”
FCL also found out that in July 2011, letters had been sent to the spouses of the female employee and male employee who had been involved in the altercations with the worker in question. The letters described an alleged affair between the two employees and led to a confrontation in the workplace. The worker denied sending the letters ormaking derogatory comments to either of the other employees.
FCL determined the worker was responsible for personal harassment of the female employee. Its investigation found there was a pattern of gossip and harassing behaviour amongst the Filipino employees and found the worker was one of the leaders of that group.
On July 31, 2012, FCL suspended the worker for five days without pay for violating the company’s harassment policy. The union grieved the suspension.
The arbitrator found FCL considered the worker to be a leader in the workplace and led a harassment campaign against the female employee and the other male employee. This was perhaps because he was a long-term employee who was often outspoken and influential. However, the arbitrator found there was no evidence FCL considered the Filipino employees as a whole to be troublemakers or bad employees, so if the worker was a leader of that group, it didn’t mean he should be responsible for a pattern of harassment by members of that group, said the arbitrator.
The arbitrator also found the worker’s blaming of equipment tampering on the male co-worker, along with other incidents involving the male co-worker, had nothing to do with the alleged harassment of the female employee – which FCL used as the basis for the suspension. Though the male employee and the female employee were friends, they worked in different departments and any incidents involving them and the worker were separate, said the arbitrator.
Worker one part of gossipy workplace
In addition, most of FCL’s evidence of the worker’s actions and comments were hearsay from various employees and there was no real proof, said the arbitrator. In fact, the arbitrator called into question the main incident with the female employee involving comments about her face, as the worker denied making the comment and claimed he was only laughing at something another worker who was present said. However, the female employee took offence and became angry. What raised the arbitrator’s suspicion was that the worker reported this incident shortly after it occurred and the female co-worker did not report or speak to anyone about it that day – which wasn’t consistent with her previous behaviour of reporting incidents immediately after they happened. As it turned out, she only reported the incident after going home and discussing it with her husband.
The arbitrator also found the allegations of blocking the aisles were exaggerated by the female employee, as he may have done so occasionally in the course of his work but the female employee didn’t give any specifics.
As for the letters sent to the spouses, the person who delivered them was described as similar to the worker, but other employees also matched the description. Employees interviewed theorized about who was responsible, but FCL had no proof it was the worker. Also, the company treated it as a domestic matter at the time and only included it in the harassment investigation after another employee brought it up.
The arbitrator also found FCL didn’t properly investigate the tampering complaint filed by the female co-worker, as it didn’t look into which employees were around at the time of the tampering. On some of the shifts, the worker worked the same shift as the female employee and couldn’t have tampered with her powerjack unless he worked overtime once she was gone. However, there was no evidence he did nor that he instructed anyone else to do the tampering, said the arbitrator.
The arbitrator found there were rumours about the female employee and the male employee throughout the warehouse and they were gossiped about by other employees. The two employees helped fuel the rumours by asking others about them and FCL didn’t have grounds to single out the worker for specific comments it knew about through hearsay, said the arbitrator.
FCL also didn’t properly investigate the threatening phone calls to the male employee and simply inferred it was the worker without checking his alibi, activities or the phone records. The male employee confirmed there was no actual death threat made, though FCL had noted it as such.
