Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2019 More Cases « from HARASSMENT on page 1 Workers' jokes were inappropriate for workplace Taunting after complaint Afterwords, omas mentioned this to the assistant track supervisor to whom the crew reported, hoping he could tell Siebe- neich to not text and drive, without men- tioning her involvement. However, the next day she was riding in the back seat of a truck with the crew when Hrycyk — in the seat in front of her — tapped a knife on a metal box between the seats, called her a snitch, and said "snitches get stitches." According to omas, all three of her crewmates began repeating the phrase. Later, when they were all in the truck again, Hrycyk faced her with his knife in his hand and repeated, "snitches get stitches." omas told him to f--- off and they ex- changed more profanities. Hrycyk brought up the phrase a third time later in the truck, while gesturing with his knife. omas later said she didn't feel she was going to be stabbed but felt threatened to keep her mouth shut when working with the crew. On June 9, the crew was working on a segment of track when Hrycyk told om- as he found an arrowhead. omas had earlier expressed a hope she would find an old arrowhead when they were in the field, but Hrycyk had actually picked up a sharp rock. Hrycyk told omas to bring her wrist over and omas laughed at him. Siebeneich, the assistant foreman, told Hrycyk to make sure he cut lengthwise in- stead of across to "do the job properly." omas once again approached the as- sistant track supervisor later, who brought matters to the track supervisor. e super- visor decided to meet with the full crew informally to discuss the matter at a rock pit out in the field. Siebeneich said he had just been joking about omas slitting her wrists, but omas observed that Hrycyk was "so angry he was shaking." e track foreman, Hydemaka, said omas had been joking and laughing and she should have said something if it bothered her. omas was surprised and upset the su- pervisor handled the matter with an infor- mal, impromptu meeting in the field and felt she had been put on the spot. She took the next two days off work and spoke to a coun- sellor she had been visiting about concerns returning to work. On June 20, omas emailed an official complaint to the assistant supervisor de- tailing the three "snitches get stitches" inci- dents and the sharp rock incident. She said she felt "intimidated, bullied, and threat- ened" and that she "had to remain silent in order to maintain a congenial workplace at my expense." She stated that she had tried to tell the assistant track supervisor about it, but it wasn't handled properly. omas also complained about the cul- ture, attitudes and behaviour at CN and how harassing, inappropriate behaviour had be- come normalized. She said she was upset that the men on her crew don't think what they did was wrong and the "boys will be boys ex- cuse is just not acceptable to me anymore." omas went off work and received workers' compensation coverage for the mental stress from the harassment. CN in- vestigated and terminated the employment of the other three crew members "for your conduct involving participating in threats of and harassment toward" omas. e three men were also charged criminally after police investigated. Hydemaka volun- tarily entered into a peace bond while the other two had their charges withdrawn in exchange for alternative measures — a deal that required them to accept responsibility for "the act or omission that forms the basis of the offence" but couldn't be used against them in civil or criminal proceedings. e union grieved the dismissal of the Hrycyk, Hydemaka, and Siebeneich, pointing out the peace bond and alterna- tive measures did not mean they admitted to harassing omas. e arbitrator noted that CN had a legal obligation under the Canada Labour Code and the Occupational Health and Safety Regulation to protect the health and safety of its employees. CN also had a policy pro- hibiting harassment by employees of other employees. e railway also had a policy against workplace violence, which included threats or gestures "than can reasonably be expected to cause harm, injury or illness." e arbitrator found that though Siebe- neich denied knowing omas com- plained about his driving and cellphone use, it was likely the assistant track super- visor talked to him about it and he knew it was omas who complained, hence the "snitches get stitches" remarks. And though all three men said they used that term before omas joined their crew and they were joking, the arbitrator found this an attempt to explain away the incidents and was a self-serving rationalization. As for the sharp rock incident, the arbi- trator found that Hrycyk telling omas to give him her wrist wasn't an appropriate joke, though it was likely he meant it in jest. In addition, it was possible the comment about lengthwise cutting, not widthwise wasn't directed at her, though it was under- standable she could have interpreted it that way. While not necessarily intended as a threat, the crew's behaviour wasn't appro- priate for the workplace, said the arbitrator. e arbitrator determined CN had just cause to discipline the three men, particu- larly Hydemaka — who may have been least involved, but as the foreman did nothing to intervene and participated in the "snitches get stitches" comments. In addition, none of them had a "bank of long term service to draw upon" — Siebeneich had 10 months of service and the other two three-and-one- half years — they showed no acceptance or understanding of their misconduct, even trying to rationalize it, and they violated CN policies. As a result, the grievances were dis- missed and the dismissals upheld. "is is not a situation amenable to say 'boys will be boys' explanation. I suspect each grievor, individually, is capable of more maturity than they exhibited collectively," the arbitrator said. "However, the fact they acted in concert and in a 'mobbing way' adds substantially to the gravity of the offence." For more information see: •Canadian National Railway and USW, Local 2004 (Hrycyk), Re, 2019 CarswellNat 523 (Can. Railway Office of Arb. & Dispute Resolution). WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as pay equity audits, marijuana in the workplace, and dealing with sexual harassment in the #MeToo era. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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