Employer accused employee of a pattern of harassment but evidence was circumstantial
An Alberta company fired an employee as a scapegoat for a toxic and harassing environment in the workplace, the Alberta Arbitration Board has ruled.
Alberta Distillers runs a distillery in Calgary, where it produces bulk alcohol for export. In September 2008 an employee in its packaging department resigned because she wanted to pursue other business interests. However, in her exit interview, the employee told the company she would have stayed longer but couldn’t take working there anymore because of a hostile and harassing atmosphere in the department.
The resigning employee described a message written by a co-worker on the Facebook page of Michael Whiteside, another co-worker, that insulted her. The message referred to her with a derogatory nickname which she had heard used at work. She also said the co-worker who posted the message deliberately tried to hit her car in the parking lot on one occasion. Whiteside was a passenger in the co-worker’s car at the time.
Alberta Distillers took the departing employee’s accounts seriously and launched an investigation into whether there was harassment in the packaging plant. Whiteside was identified as involved in the Facebook incident as well as the parking lot incident. The company also learned the same co-worker who had written the message and was the driver in the parking lot refused to train the departing employee. Whiteside was implicated in this treatment because he was known to be in a relationship with the co-worker.
At the conclusion of the investigation, the company’s director of human resources recommended termination for four employees involved in the harassment, including Whiteside, and written warnings for two others. On Nov. 20, 2008, Alberta Distillers fired Whiteside for “persistent conduct of bullying,” a pattern of harassment and intimidation of co-workers.
The board found Whiteside had not been disciplined for the parking lot incident, so it was inappropriate to use it as justification for dismissal as Alberta Distillers had a policy of progressive discipline. There was also no evidence linking him to the co-worker’s refusal to train the departing employee and it should not have entered into the equation. The only evidence of harassment that was attached to Whiteside, the board said, was the Facebook message on his page, and that was posted by someone else. There was no indication he commented or wrote anything similar and, as it turned out, nobody in management at Alberta Distillers actually saw the message.
“There is no evidence to support the allegation that (Whiteside) did anything on Facebook which constitutes harassment, let alone a persistent pattern of harassment, which would justify the company imposing an discipline on him, let alone termination,” said the board.
Alberta Distillers was ordered to reinstate Whiteside with no loss of income, benefits or seniority. See Alberta Distillers Ltd. v. U.F.C.W., Local 1118, 2009 CarswellAlta 1467 (Alta. Arb. Bd.).