Employer cannot justify discharge with a flawed harassment report
Employer should not have relied on the flawed report of a harassment investigator who drew conclusions based on little more than rumours and innuendo
An arbitrator has reinstated an employee who was terminated for harassment, concluding that the employer had improperly relied on a flawed harassment report in which the investigator drew conclusion from rumours and innuendo rather than objective facts.
Background
The grievor was a captain in the fire service with over 20 years of experience. He was a former member of the executive of Oakville Professional Fire Fighters’ Association, serving as treasurer and vice-president before he stepped down. He was fired by the employer after being accused of creating a hostile work environment for another employee.
The complainant was also on the Association’s executive, serving as its treasurer. During the complainant’s tenure on the executive, several issues became a source of conflict and tension among executive members, former executive members, and the membership more broadly. These included an important tax issue related to source deductions, remittances and issuing T4’s for honorariums; duty exchange payments and whether executive members should accept overtime. The complainant maintained that, over several years, these issues were discussed in the workplace in a way that created a poisoned work environment for him.
In November 2015, the complainant was registered to attend and represent the Association at a 2-day conference put on by the Ontario Profession Fire Fighters Association. The complainant testified that he could not attend the first day of the conference as a result of a personal commitment. He therefore made arrangements to have another executive member attend the conference that day. However, when the complainant’s personal commitment was rescheduled, he accepted an offer of overtime and worked that day.
The grievor also attended the conference. He saw the complainant’s conference badge on the registration table, took a photo of it and sent it to a colleague and to the acting captain at the station where the complainant was working overtime. The messages accompanying the photo suggested that the complainant was a “double dipper” – i.e. he was being paid by the employer to work overtime and also by the Association to attend the conference. The grievor’s colleague forwarded the photo and message to several others, and one of those people distributed it widely.
The complainant filed a complaint against the grievor under the employer’s respectful workplace policy with regard to this incident and others.
The complaint was investigated by a third-party investigator. The employer terminated the grievor based on the findings of the investigator’s report. The harassment report concluded that the grievor had engaged in workplace harassment and had caused a poisoned workplace (by “spreading cancer” and “rumours” about the complainant). The employer did not undertake its own investigation.
The parties’ arguments
At arbitration, the employer argued that the grievor’s conduct exhibited a pattern of harassing and bullying behaviour, culminating with the conference badge incident. The entire pattern should be considered, the employer suggested, along with the grievor’s previous record, which included a suspension for harassment of a co-worker. The employer asked the arbitrator to draw an adverse inference from the grievor’s failure to testify, which it said should be taken as a concession that he engaged in the behaviours of which he was accused. The employer further submitted that, even if the arbitrator did not find just cause for termination, she should refuse to reinstate the grievor and order compensation instead.
The Association submitted that the employer had failed to establish just cause for termination. It argued that the employer acted on a harassment report in which the investigator’s conclusions were entirely unsupported by evidence, and were based on rumours and unsubstantiated hearsay. There was no evidence, the Association maintained, that the grievor had engaged in a course of vexatious conduct or had created a poisoned work environment for the complainant. Therefore, there was no reason for the grievor to testify. The Association asked the arbitrator to reinstate the grievor, arguing that this case did not fall into the category of exceptional cases in which compensation could be ordered in lieu of reinstatement.
The arbitrator’s decision
Arbitrator Diane Brownlee held that the grievor should be reinstated, and a suspension of one 24-hour shift should be substituted.
The arbitrator commenced her award by noting the significant and troubling flaws in the harassment report relied on by the employer. While the investigator had interviewed many employees, most of them had never worked with the grievor, and had not witnessed to any inappropriate or harassing conduct. Rather, these “witnesses” recounted rumours and gossip, which the investigator then relied on to make her findings. The arbitrator was not impressed:
… [T]he investigator included pages of such inflammatory opinion statements in the investigation report. It appears that she relied upon them in making her findings. This is entirely improper. Such statements are not evidence, they are not relevant and they are not admissible.
The jurisprudence is clear that findings of harassment cannot be made on the basis of conjecture or rumours, or on the opinions of the witnesses in the investigation. Rather, such findings must be made on the basis of objective facts …
The arbitrator refused to find that the grievor had created a poisoned work environment or engaged in a pattern of harassment in the years leading up to the conference badge incident. She held that there was a distinction between harassment or bullying, on the one hand, and workplace conflict, on the other. Although a number of witnesses had described the workplace as “poisoned”, the arbitrator found that they were referring to differences of opinion about a number of Association issues that were being widely discussed in the workplace. These were important and complicated issues about which reasonable people might differ. There was no evidence that the grievor had spread critical remarks or rumours about the complainant in those discussions. Rather, all of the evidence supported the conclusion that the grievor was concerned about legitimate union issues. She therefore rejected the argument that the grievor had engaged in a history of harassment or bullying of the complainant.
With respect to the conference badge incident, the arbitrator found that the grievor was concerned about a legitimate issue – namely whether the complainant was working overtime rather than attending the conference. She also held that, even if he was wrong about double dipping, the grievor was not wrong to raise that concern and provide the conference badge as evidence of his understanding of the facts. She also rejected the argument that the grievor acted through, or incited, others to harass the complainant.
However, she held that, as an acting captain, the grievor should have known that the complainant had a right to a work environment where he would not be confronted by his captain about union issues. His message to the complainant’s captain beached his duty to maintain a harmonious workplace free from unnecessary conflict. This finding led the arbitrator to impose the one shift suspension.
Otherwise, the arbitrator ordered the grievor reinstated with no loss of compensation, seniority, service or benefits. She also ordered that the grievor’s return to work be done in a way that limited contact with the complainant including with regard to overtime and duty exchanges.