City had no grounds to suspend worker for harassment: Arbitrator

Investigation was expanded beyond incident in question: Board

The city of Saskatoon did not have sufficient grounds to suspend a longtime employee for three days without pay following an investigation into claims of harassment by another worker, the Saskatchewan Arbitration Board has ruled.

Don Zapski was suspended in June 2009 after a female worker claimed he and two other employees at the city's water treatment plant harassed and bullied her, and discriminated against her and other women in their workplace.

The complainant, Dawn Dierker, accused the men of speaking negatively about her because she won her job over another male employee with more experience. She said they also commented on her personal appearance, including her weight, and they attempted to intimidate her into silence at meetings.

In March 2009, the city ordered a third-party investigation into the complaints to see if there had been a breach of its respectful workplace and harassment policies. The investigator tendered a scathing report that suggested the complaints "exposed a history of abusive destructive behaviour of three controlling and manipulative employees."

In its letter of suspension to Zapski, the city cited what it called "extremely serious examples of inappropriate workplace behaviour." The initial suspension of five days without pay was later reduced to three.

The city's decision to suspend Zapski, a 21-year employee with no discipline record, stemmed entirely from the third-party investigation. The investigator's report was based on fifty-four interviews with forty-seven people.

One employee described the work environment at the water treatment plant as a "negative horrible culture…abhorrent in nature…with people leaving faster than they could be replaced." Several people said they have never experienced a more hostile work environment, and had avoided the lunch room because of "objectionable" remarks and behaviour by Zapski and two others.

However, after examining the specific incidents cited in the report, the Board found the city had not proven Zapski's conduct breached its harassment policy and the suspension was not justified.

The Board suggested the investigator's report was "nothing more than an explanation as to why the employer levied discipline" and that the city was still required to prove the facts through direct, personal evidence tested under cross-examination at an arbitration hearing.

The report, wrote the Board, was "prejudicial, not probative" and relied on hearsay that in some cases was not corroborated by other witnesses.

In fact, Dierker testified only two of the incidents listed in the report stemmed from her original complaint, and she had no involvement in two of the other five incidents, listed in the report. In one of the incidents, there were no witnesses interviewed by the city.

The Board also agreed with the union's criticism of the investigator for expanding the investigation beyond the initial complaint by Dierker to include findings of wrongdoing by Zapski against workers who not only did not make a complaint, but who were not even called as a witness in the hearing.

The city was ordered to repay Zapski's lost wages and benefits. See City of Saskatoon v. The Canadian Union of Public Employees, Local 47 (Aug. 15, 2011), William F.J. Hood – Chair (Sask. Arb. Bd.).

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