The grievor had a coflict with a co-worker and she complained. The company chose to deal with the conflict as regular progressive discipline. The arbitrator found that under the facts of the complaint, it should have been treated as harassment. The termination was reversed.
A mill worker was fired for insubordination and rule infractions after a coworker complained about his aggressive and bullying behaviour.
The union grieved, arguing the employer failed to follow the proper harassment complaint procedures laid out in the collective agreement.
Hired in 1997, J.N. worked as a “Sonic Operator” at a pipe mill. He had two suspensions for insubordination on his record when he was fired in October 2010.
The Sonic Operator station was the next stop on the line after the Final Inspector, who was responsible for an initial visual inspection of the pipe. The Sonic Operator performed a further visual inspection of the pipe and an ultrasound scan.
K.R. was hired in 2007. In 2010 she moved into the position of Final Inspector. After her initial training, K.R. was advised on the finer points of the job by J.N. and other operators that she worked with on different shifts.
Sometime in June 2010, K.R. adopted a work procedure that changed the timing of when she moved pipe on to J.N.’s station.
Flapping the kickers
J.N. did not approve of K.R.’s new practice. By the end of June, he was signaling his dissatisfaction by pounding on K.R.’s desk, clapping his hands in her face, looming silently in her workstation and by misusing the mechanical pipe lifts at his workstation to make repeated, loud banging noises — “flapping the kickers.”
On Sept. 27, after a couple of bad shifts over the weekend, K.R. spoke to her supervisor about J.N.’s behaviour.
She said she felt intimidated and uncomfortable coming to work. At the supervisor’s request, K.R. detailed her complaints in a written statement. Copies of the statement went to the supervisor, the union vice-president and the mill manager.
K.R. also spoke in person to the mill manager to say she had “had enough.” K.R. told the manager she did not want to be seen as causing problems, she did not want to file a harassment complaint, but she wanted the behaviour to stop and to be able to do her job.
J.N. was summoned to a meeting on September 29 with the supervisor, the mill manager, the union vice-president and the union shop steward.
J.N. had little to say at the meeting. He was suspended indefinitely and, on Oct. 12, J.N. was fired.
The termination letter referenced J.N.’s disciplinary record and the company’s regime of progressive discipline. The company asserted it had sufficient grounds to justify J.N.’s termination.
The union grieved. The union said the employer had violated the terms of the collective agreement by failing to follow the Discrimination and Harassment Complaint Procedure laid out in the contract.
Union concedes harassment
It was clear K.R. was complaining of workplace harassment. The union conceded J.N.’s behaviour constituted harassment. K.R. provided a written statement and, in the circumstances, the employer was obligated to follow the Complaint Procedure agreed to by the parties. Instead, there was a complete failure to follow the established procedures with the result that J.N. was denied his contractual rights to a proper investigation, the union said.
There was no violation of the collective agreement the employer said because there were no allegations of harassment. K.R. made no such complaint and the procedure in the agreement did not allow for either the union or the employer to lodge such a complaint — regardless of how they viewed J.N.’s behaviour.
Respect was a core workplace value, the employer said, and J.N.’s egregious flouting of the norms of expected behaviour constituted a further example of insubordination. Incorporating harassment investigation procedures into the collective agreement did not supplant an employer’s right to discipline an employee, the employer said.
The employer did breach the collective agreement, the Arbitrator said.
In this case, the Complaint Procedure written into the collective agreement was comprehensive. It addressed not only the investigative procedures to be followed but also remedial and disciplinary guidelines for resolving complaints.
“The Employer’s right to discharge, suspend or discipline an employee for just and reasonable cause is ‘subject to the terms of this Agreement’… These parties have specifically agreed that when an employee makes a complaint in writing of discrimination or harassment, all such complaints will be fully investigated in accordance with [the] Appendix ‘G’ Complaint Procedure and appropriate remedial action will be taken,” the Arbitrator said.
J.N. was contractually entitled to have the complaints against him investigated and determined according to the procedures outlined in the collective agreement. The employer’s failure to follow the Complaint Procedure was a breach of the Collective Agreement.
“I acknowledge the Employer’s right to discipline employees for conduct such as that of the Grievor in the alleged abuse/misuse of equipment. However, it is my conclusion that in these circumstances this alleged misconduct is so inextricably linked to the complaints of harassment that it is more appropriate that the conduct be considered part of the harassment complaint to be investigated and determined pursuant to the Complaint Procedure.”
The grievance was accepted. J.N. was ordered reinstated with full benefits and no loss of seniority. However, the Arbitrator said, the judgment did not prevent the parties from addressing K.R.’s complaint through the Complaint Procedure.
Reference: United Steelworkers, Local 5890 and Evraz Inc NA Canada. Kenneth A. Stevenson — Sole Arbitrator. Sonny Rioux for the Union. Meghan McCreary for the Employer. April 26, 2011. 20 pp.