Canadian Employment Law Today

6 | October 10, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends also contained wet cells — cells with self- contained bathroom facilities used to house high-security inmates of both sexes. Female corrections officers were assigned to both the male and female units, but the female unit only had female officers and a female inmate in a wet cell had to be supervised by a female officer. In August 2011, the FSCC adopted a pol- icy aimed at making its workplace respect- ful and free of harassment. Six months later, on Feb. 20, 2012, MacLeod filed a sexual harassment complaint under the policy against a co-worker. e FSCC looked into the complaint and found there was enough initial evidence, so it launched an independent investigation nine days later. e investigation deter- mined that MacLeod's compliant was sub- stantiated. e harasser was suspended for one week and prohibited from duties that required him to go to the female unit where MacLeod worked. ings changed after harassment complaint: Worker Not long after MacLeod filed her complaint, she claimed four co-workers and supervi- sors — including the acting deputy warden and a female supervisor in the female unit — began treating her differently. When she asked about something, she was told to "go figure things out" and she had a significant amount of work given to her. She also told the acting warden about the difficulties she was having, but he told her there was noth- ing he could do and she "needed to get over it so she could resume shifts." After her harassment complaint, Ma- cLeod wasn't assigned duties in the wet cells in the male unit, but she had to go to the building to attend an occupational health and safety meeting. While there, she saw her harasser walk by and look at her through the meeting room's window. After the meeting, the deputy warden said to her, "you can come over for a meeting but can't do a shift?" MacLeod said she encountered her ha- rasser several times, even though they weren't supposed to be near each other — usually when he returned meal pans or trays to the female unit, where a kitchen was. MacLeod reported these instances to her supervisor, but there were no witnesses. MacLeod's problems with her supervi- sor in the female unit included — accord- ing to MacLeod — ignoring her questions, telling her she wasn't allowed in the office when the supervisor was on shift, remarks about MacLeod "not pulling her weight" because she didn't escort female inmates to the wet cells in the male unit, and telling her she was "useless on shifts." Shortly after the report of the harassment investigation was released, the supervisor told MacLeod to go to the wet cells. MacLeod claimed when she said she wasn't supposed to go over there, the supervisor told her if she didn't she would be terminated. MacLeod claimed she encountered her harasser and informed the acting warden, who instructed the supervi- sor not to give MacLeod such assignments — though as it turned out, the harasser wasn't at work that day. In mid-June 2012, MacLeod had to go to court in Yellowknife because of a domestic assault by her common-law partner. Her supervisor came to court and MacLeod claimed she sat beside her, but the super- visor said she sat in the back. During the session, the supervisor was texting on her phone about the court appearance, said MacLeod. e supervisor said she went to court for support, but denied sitting beside MacLeod. MacLeod felt she had had enough and told the acting warden she was going to re- sign due to stress in her personal life, which had culminated in the domestic assault from her partner. e warden testified she didn't mention any workplace issues at the time, and asked her to take stress leave in- stead of resigning. MacLeod agreed, going on leave from June 11 to Sept. 4, 2012. After MacLeod returned to work, things didn't get any better for her. She broke her arm during an outdoor training course in December 2012, but the acting deputy war- den told her co-workers her common-law partner broke it in a domestic dispute. Two fellow corrections officers with whom she had previously got along no longer spoke to her. Her harasser sat for hours at a location near her house to retaliate against her for her complaint, but the harassment inves- tigators had told her not to call the police because it was an internal matter and the harasser hat been sitting on public proper- ty. Overall, MacLeod felt "unsafe, criticized and worthless." On Jan. 25, 2013, MacLeod presented a letter of resignation that indicated in the 11 months since she filed the harassment com- plaint, she had been repeatedly bullied and targeted by "vicious rumours." MacLeod also said in the letter that two supervisors "have been extremely difficult to work with since the incident and have been the main two individuals who have caused most of the issues for me… Since the date of report- ing original incident I have had a target on my back." She also said she had been told not to discuss her complaint, which she thought meant should couldn't seek counselling. Following her resignation, MacLeod, through her union, filed a grievance claim- ing she was a victim of workplace psycho- logical violence. Credibility issues e arbitrator had some issues with MacLeod's credibility. At the health and safety meeting in the male unit, it turned out there was a brief encounter between MacLeod and her harasser, but the deputy warden quickly ushered the harasser to another area. ere were no witnesses to MacLeod's claim of encountering the harasser several times — particularly since the harasser wasn't supposed to be coming to the female unit — and the one time she had to escort a female inmate to the wet cells, the harasser wasn't working that day. e arbitrator also heard evidence from witnesses supporting the supervisor's ac- count of the day in the courtroom — she sat at the back of the room, not beside Ma- cLeod. In addition, the use of cellphones was prohibited in the courtroom, so it was unlikely the supervisor was texting about it, said the arbitrator. e arbitrator found that the allegations of workplace violence in MacLeod's letter of resignation were unsupported by any evi- dence and her claims of being treated dif- ferently and encounters with her harasser were exaggerated. e FSCC lived up to its obligations following the sexual harass- ment complaint and MacLeod's personal problems combined with the harassment complaint likely contributed to her stress and decision to resign, said the arbitrator in dismissing MacLeod's complaint. "I believe all that could be done for (MacLeod) at her workplace was in fact done including ensuring that (she) was kept away from (her harasser), notably evidenced by the fact that she was not assigned to the male unit for any tasks such as wet cell duty," the arbitrator said. "(MacLeod) may have been subject to occasional taunting by her co-workers after the sexual harassment investigation was completed, such as for being excused from having to escort female inmates to the wet cells. But these kinds of comments are typical of those that occur in any institutional workplace and do not amount to bullying or violence within the meaning of… the collective agreement." For more information see: • Northwest Territories (Minister of Hu- man Resources Government) and Union of Northern Workers (MacLeod), Re, 2018 Car- swellNWT 41 (N.W.T. Arb.). Employer banned harasser from worker's building « from SEXUAL HARASSMENT on page 1 The worker's personal problems contributed to her stress and decision to resign

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