Comment and gesture made in frustration; not every inappropriate comment is harassment under employer’s policy: Arbitrator
An arbitrator has determined that an Alberta correctional centre director did not harass correctional officers about to go on an illegal strike when the director made a gun-related comment and a gesture at them.
The Fort Saskatchewan Correctional Centre in Fort Saskatchewan, Alta., issued a sexual and workplace harassment policy in November 2012 that stated it was committed to providing a “working environment free of harassment.” The policy was zero-tolerance and defined workplace harassment as “unwelcome conduct that is offensive in nature and detrimentally affects the work environment or leads to adverse job-related consequences for the victims.”
The policy indicated key characteristics of harassment were one-sided conduct that was offensive and unwelcome, including remarks and physical assault. It also specifically excluded “the legitimate exercise of an individual’s supervisory authority.”
The centre followed up the release of the policy with a booklet on maintaining a harassment-free workplace that stated threatening behaviour and verbal or written threats constituted workplace violence that also fell under the definition of harassment.
In spring 2013, there was labour unrest among the centre’s correctional officers as their collective agreement approached expiry. On April 26, 2013, all the correctional officers on duty decided to leave their posts and take part in an illegal strike. In all, 30 officers walked out and left four members of management and a nurse in charge of more than 450 inmates.
On the day the illegal strike started, the director of the centre approached a small group of correctional officers as they were about to leave their posts. The group had gathered in a walkway leading to the centre’s entrance. The director had just been informed of the walkout and was disappointed the officers were choosing this course of action.
According to three of the officers, the director came up to them, formed his hand into the shape of a gun and said words to the effect of “my gun is loaded and it has bullets in the chamber for each of you.” A fourth officer heard the words but didn’t see the gesture.
Three of the officers felt the director was metaphorically threatening their jobs. However, another officer felt the director was making a threat to his physical safety and described it as a “death threat.”
The walkout lasted seven days and before the correctional officers returned to work, they met with management to discuss an orderly return to work. The director said the illegal strike was “water under the bridge” and they needed to move forward. However, the correctional officer who had felt threatened in the walkway incident at the beginning of the strike wanted an explanation.
The director didn’t recall what he had said to the group of officers but he said he apologized if he offended anyone and no ill will was intended. The officer appeared to accept the apology.
Police and independent investigator found no harassment
However, what the director didn’t know at the time was that a couple of days earlier the complaining officer had visited the local detachment of the RCMP and made a complaint. He claimed he initially made the complaint just so it would be on file in case something else happened at work later, but he later told the police to proceed with the investigation after he was fired with three other officers on July 8, 2013.
The RCMP decided not to lay charges because it was difficult to determine a specific victim and there was a likelihood the officer was pursuing the matter only to be vindictive following his dismissal.
Following a grievance, all four officers were reinstated in February 2014 with suspensions. The officer who complained of harassment was given a three-month suspension.
The centre hired an independent investigator to look into the officer’s complaint. The investigator determined the director said something to the group of correctional officers that was inappropriate, but a reasonable interpretation of the comments would not justify a fear of physical harm.
Unhappy with the decision, the officer filed a grievance claiming he was afraid of the director and wanted him to be “dealt with as per policy.” The officer also wanted to no longer be supervised by the director and given $400,000 in punitive damages.
Arbitrator Lyle S.R. Kanee agreed that the director approached the correctional officers in the walkway, made the shape of a gun with his hand and said the words regarding bullets for each of them. However, he found that the circumstances were stressful and emotionally charged and the director’s actions were a “momentary expression of frustration.”
Arbitrator Kanee noted that the director apologized as soon as the incident was raised in the meeting and didn’t even remember the details. In addition, the other officers present didn’t take it as a physical threat and the complaining officer had spoken about the pressure he felt from the union to participate in the illegal strike, which may have contributed to his state of mind at the time, said Kanee.
Kanee found that the centre’s policy and booklet on harassment provided for a specialized complaint and investigation process, which the centre followed with its independent investigation. It rightfully determined that the director’s actions were not harassment in the context of the circumstances.
“There is a serious risk of trivializing a label intended to address serious, problematic conduct by casting too wide a net,” said Kanee. “It is incumbent upon individuals in the workplace to try to sort out their differences among themselves without relying on formal processes or the intervention of third parties.”
Arbitrator Kanee determined the officer used the complaint and grievance process to “express his overall frustration with management and his general perception that he was not being treated fairly by his employer.” Though the director’s conduct in the walkway was inappropriate, it didn’t constitute harassment, said Kanee in dismissing the complaint.
For more information see:• Alberta and AUPE (Borrelli), Re, 2016 CarswellAlta 610 (Alta. Arb.).