Perceived harassment doesn't make it true: Arbitrator
An Ontario worker who was active in his union and had several run-ins with management was understandably unhappy but not a victim of discrimination, the Ontario Arbitration Board has ruled.
Peter Prescott was a key player in organizing union representation in 2000 at a Sobeys distribution centre in Whitby, Ont. Ever since, he felt he was harassed by management as a result of his union activities.
Among other things, he said he was removed as a lead hand, suspended for three days, accused of harassment, stripped of his weekday shift and found partly responsible for a workplace accident. He claimed supervisors swore at him and disrespected him and Sobeys even offered him $50,000 to resign.
Things came to a head in September 2006 when Prescott physically removed a co-worker from a chair, saying she “shouldn’t have been seated there.” He apologized and the co-worker accepted, but another employee reported the incident to management.
After Prescott, a materials handler, was found at fault, he took stress leave for about six weeks. He received several phone calls about a forthcoming letter of warning, but management never delivered it.
After returning to work, Prescott launched an unsuccessful grievance over premium pay and later alleged employer witnesses had lied to the arbitrator in that case. He was also unhappy another employee, whom he saw harassing the same co-worker Prescott pulled from the chair, was not treated as he had been. This led to heated words with his manager and Prescott saying, “You people screwed me and I am coming after you.”
In response, Sobeys sent him a letter encouraging more professional behaviour. It considered the letter “a coaching letter” and did not deem it disciplinary.
In May 2007, Prescott filed the first of several grievances alleging harassment and requesting $10,000 to compensate for “lost wages and anguish.”
Soon after, Prescott applied for another stress leave. Management wrote a letter to the insurer noting he “spends almost every summer” on short-term disability or workers’ compensation, requesting a thorough investigation of his alleged disability.
Union investigator finds harassment
Sobeys agreed to have a union investigator look into Prescott’s allegations of harassment. When the union report concluded he had been harassed and recommended compensation for lost income, the company hired an outside consultant to investigate. The consultant found no grounds for the harassment allegations but recommended workplace coaching to help raise Prescott’s morale and job satisfaction.
The matter was taken to arbitration to determine if there was a prima facie case for harassment or discrimination under the Ontario Human Rights Code, the Labour Relations Act and the collective agreement.
Employer didn’t overreact: Arbitrator
The arbitrator concluded there was no case. Each of the events from 2000 to 2006 was not grieved at the time, was settled or attracted no discipline. The fact the employer apparently offered money to encourage Prescott to resign was “privileged and confidential information” and not admissible or relevant.
The relevant concerns were the events beginning in September 2006 with the chair incident. For a grievance based on anti-union animus to succeed, management would have to have shown excessive reactions to trivial conduct, a pattern of antagonism to the union or a lack of any apparent rational basis for acting against Prescott. There would also have to be a time connection between the union activities and the retaliation.
The arbitrator found no evidence the employer overreacted, even in the case of the suspected assault. Sobeys left no discipline on file for “what might have been considered to be a very serious offence.”
As far as the Human Rights Code was concerned, “nothing in any of the allegations or any of the materials” alleged harassment based on any of the 12 enumerated grounds set out in the code — race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
Regarding the collective agreement, just because someone perceives an action to be harassing doesn’t necessarily make it so, said the arbitrator. The employer had not just a right but a responsibility, under the Occupational Health and Safety Act, to investigate the possible assault of a co-worker. Prescott admitted he “grabbed (her) and pulled her out” of the chair. The company’s response — the warning letter — was lenient and it did not even follow through on issuing the letter, noted the arbitrator. If Prescott was treated differently from a co-worker who committed the same offence, that suggested a “lack of proper diligence” on Sobeys’ part, not harassment, said the arbitrator.
The hearing on this case was not an appropriate venue for dealing with Prescott’s accusation management lied during a previous arbitration hearing, said the arbitrator. The fact management had written a letter to the insurer, while “troubling” at first glance, was not inaccurate about the facts of his pattern of absenteeism and did not direct the insurer to deny benefits.
There was no point in “putting the parties to the time and expense of a protracted hearing,” said the arbitrator, as there was no evidence of any harassment by management based on Prescott’s union activity. He may have been unhappy, but he had not been harassed.
Lorna Harris is the assistant editor of Canadian HR Reporter’s sister publication CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. For more information, visit www.hrreporter.com/clv.