Worker fired after co-worker’s abuse gets $13,000 in damages

Employer thought it was solving workplace problems by terminating worker, but didn’t investigate the root of the problems — workplace abuse and harassment

An Alberta agricultural co-op must pay a former short-term worker $13,000 in damages after it fired her without properly investigating problems in the workplace caused by a co-worker’s abusive behaviour towards her, an adjudicator has ruled.

High Prairie Seed Cleaning Co-op is a grain cleaning facility in High Prairie, Alta., that prepares and upgrades seeds for the marketplace. The plant is overseen by a board of directors meeting every two to three months, with a manager — Bryant Kushner — taking care of the day-to-day operations.

The co-op hired Tammy Roberts in April 2015 to handle the plant’s bookkeeping and clerical tasks. Along with Roberts and the manager, there were two other employees — plant operator and lead hand Trevor Carrier and a part-time worker in the feed processing facility.

On Oct. 27, 2016, Roberts called Kushner at his home and said she was leaving the plant because Carrier was being “an a-----e to me and is abusive to me.” Kusher told Carrier at work he wanted to meet with him to discuss the matter, but Carrier left early that day. That same day, someone arrived at the plant asking about a job because he had heard that Carrier had quit. The next day, Carrier didn’t show up to work and Kushner spoke to him. Carrier said he hadn’t quit but complained about various issues.

On Oct. 31, Roberts came to work but went back home because Carrier was there. Kushner then asked the board of directors to sort out the issues between the employees. It was the first the board had heard of any problems, so they interviewed Kushner, Roberts, and Carrier — the three full-time employees — separately.

Kushner said he had been under pressure recently and had been living in a trailer on plant property and then in the plant’s basement. He also said the employee problems to which he had referred stemmed from Carrier playing pranks on Roberts. Kushner also denied he and Roberts were having an affair, though the board hadn’t heard anything about that. Kushner asked the board to settle the matter as things had gone too far and the board should perhaps fire somebody.

In Carrier’s interview, he admitted to the pranks on Roberts but said they got along well and laughed about them. However, he said Roberts was causing him stress and he was doing more work while Kushner harvested his own farm. Carrier said he was frustrated and was no longer willing to work with either Kushner or Roberts.

When the board interviewed Roberts, she said Carrier had been making it difficult to do her job. She admitted to joking and horseplay with Carrier, leading to sometimes unprofessional and inappropriate conduct in front of customers or board members visiting the plant. She said they got along well and she was comfortable with their banter, as she felt like “one of the boys.” She also felt the need to deny she was having an affair with Kushner, but she ultimately said she couldn’t continue in her job with Carrier there because she “had a closer relationship to Bryant Kushner than should have been.”

Relationship between manager and worker too close

After the interviews, the board of directors decided unanimously to terminate the employment of both Carrier and Roberts without cause. They felt both had given them an ultimatum that they each couldn’t work with the other, so the board felt it best to dismiss both and start fresh with two new employees. The board kept Kushner on as he had been working for 40 years and was experiencing difficulty in his personal life.

The board met with Roberts on Nov. 5 to inform her of her termination, explaining it didn’t think she was capable of working with employees and she couldn’t step back from her relationship with Kushner enough to have “an effective working relationship.” Roberts was upset and disappointed, but didn’t say much at the meeting. The co-op gave Roberts four weeks’ severance pay, based on its consultation of Alberta labour standards legislation.

Two days after her termination, Roberts sent a text to one of the board members alleging Carrier had physically, verbally, and emotionally abused her at work. She followed up with a letter a couple of days later outlining examples of the abuse — such as tampering with the cash box, creating phony invoices, and physically struggling over Roberts’ phone leaving her with bruises and scratches — which caught the board off-guard as she hadn’t mentioned anything about it during her termination meeting. The board was also surprised that Kushner hadn’t mentioned anything about it, but Roberts had felt at the time they could “deal with it” without getting the board involved.

A few weeks later Roberts filed an unjust dismissal complaint with Employment and Social Development Canada. She said she believed she was fired because the board thought Kushner was playing favourites, but it was out of her control.

The adjudicator noted that the Supreme Court of Canada had found that the right to dismiss employees with common-law reasonable notice “has been completely replaced under the (Canada Labour Code) by a regime requiring reasons for dismissal” for federally regulated employers. As a result, the co-op’s dismissal of Roberts had to be for cause and the only time severance is appropriate is in cases of layoff or a reduction of work.

The adjudicator found the reasons the co-op gave for Roberts’s termination were “vague and general at best.” The board of directors told Roberts it didn’t think she could work with other employees and she was too close with Kushner, but it didn’t have any evidence the plant’s operations were affected by the relationship between them — in fact, the board of directors didn’t even know they had any kind of relationship until Kushner brought matters to their attention, said the adjudicator.

The adjudicator also found that the board didn’t investigate why Roberts and Carrier couldn’t work together any longer or Roberts’ revelations of workplace abuse at the hands of Carrier, despite Roberts’ letter outlining examples.

“The co-op bears a responsibility for the actions of their employees on the job. The board and manager have a responsibility to fully investigate any incidents which adversely affect an employee,” the adjudicator said. “The type of conduct meted out by Mr. Carrier on Ms. Roberts amounts to bullying and harassment… (Roberts) left work because she did not want to continue to be the victim of such abusive conduct.”

The adjudicator determined Roberts’ termination was “unjust and unfair.” The co-op was ordered to pay Roberts $13,000 in damages for unjust dismissal and the abuse she suffered in the workplace.

“The board and management have a duty to carry out their due diligence and to ensure all employees work in a safe and harassment-free environment,” said the adjudicator. “The co-op did not do their due diligence by carrying out a thorough investigation. Instead, they fired Ms. Roberts without cause.”

For more information see:

Roberts and High Prairie Seed Cleaning Co-op Ltd., Re, 2017 CarswellNat 4281 (Can. Lab. Code Adj.).

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