Harassment claim unfounded but not malicious: Arbitrator

Five-day suspension for complaint overturned

Harassment claim unfounded but not malicious: Arbitrator

An Ontario worker’s harassment complaint against a coworker was overblown but not malicious or intentionally false, an arbitrator has ruled.

The worker, an employee of the Independent Electricity System Operator (IESO) — a Crown corporation responsible for operating the electricity market in Ontario — made a harassment complaint on Oct. 31, 2018. He alleged that he entered the employer’s male change room and a coworker — referred to as “C” — said in a loud voice, “Come on… why are you always doing that, can’t we get a break?” C left the room and came back in, opened the door wide enough to hit the worker in the back and said “I completely forgot you were in here… you could be dead for all I care.”

The worker claimed that the incident was “one of many verbal and physical attacks I have received from him over the last couple of years inside the male joggers change room, in addition to pushing me in the hallways on multiple occasions, pushing me from behind when I am standing at the photocopier, and pointing his middle finger or swearing at me as he walked by.”

The worker claimed that he had been a victim of bullying while growing up and C’s behaviour made him feel stressed and sick to his stomach.

The worker recounted his story to management, adding that C had joked with him in the past but had become “more attacking” over the previous few months. He said he had had enough of the verbal and physical assaults, although he acknowledged never having spoken to C about his behaviour.

IESO interviewed the worker, C, and other employees. C said he didn’t recall the incident, but he said that people often opened the changeroom door wide and exposed people who were changing. When this occurred, he sometimes said “Come on. Why are you doing that,” but he always apologized if he hit someone with the door. He denied saying the “dead” comment or pushing the worker.

C was shocked at the worker’s allegations because he thought they were friends, although they hadn’t spent as much time together over the past few years. C also noted that the worker had “issues” at work.

Other employees confirmed the joking nature of the change room, the regularity of someone being shouted at to close the door but no one saw C say or do anything inappropriate.

The investigator determined that the worker’s account wasn’t credible and his allegations of workplace harassment were unsubstantiated. The worker didn’t accept the findings, but decided to move on as little would be gained by drawing things out.

On Feb. 27, 2019, IESO suspended the worker for five days for “falsely and maliciously” filing a harassment complaint and claiming the other employees collaborated to corrupt the investigation.

The arbitrator found that the investigation and the conclusion that “whatever conduct may have occurred at various points between C and the [worker], it was done without malice or ill intent on the part of C” was reasonable. However, the arbitrator noted that the worker “is an intense individual, with a troubled past” who genuinely perceived that what had happened to him was harassment.

The arbitrator found that the incidents that the worker described likely happened, “but were of such an objectively borderline nature as to escape either the notice or the recollection of the witnesses” though they made a bigger impression on the worker. As a result, there was nothing malicious about the worker’s complaint and he believed it was true, said the arbitrator.

IESO was ordered to rescind the five-day suspension from the worker’s record and compensate him for any loss of pay.

Reference: Society of United Professionals and Independent Electricity System Operator. M.G. Mitchnick — arbitrator. Richard Charney, Travis Bertrand for employer. Alex St. John, Martin Hastings, Andre Kolompar, Lemann Fung, Andrew Lee, Helen Manning for employee. Dec. 23, 2020. 2020 CarswellOnt 19342

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