Canadian Employment Law Today

6 | January 21, 2015 Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends/Ask an Expert Worker singled out for company-wide gossip Several employees were interviewed over the next few months, including the worker, who reported an incident between himself and the employee who complained of tam- pering. By March 2012, the investigation was focused on the worker, though it stalled for a while. In July, FCL was told the worker had used foul language in discussing another employ- ee, and that same employee said the worker and other Filipino workers made inappro- priate comments about the female employ- ee who had made the tampering complaint. rough interviews with various employ- ees, FCL heard that the worker had suggest- ed a co-worker – the same one he had talked about using foul language – had sabotaged his equipment by putting a piece of metal on it, and made threatening phone calls to him. e worker had also reportedly made a comment to the female employee about her "disturbing ugly face" in February 2012; made comments to others about the female employee including inappropriate sexual references; blocked warehouse aisles with his forklift when the female employee tried to pass through; and called another female employee a "bitch." FCL also found out that in July 2011, let- ters had been sent to the spouses of the fe- male employee and male employee who had been involved in the altercations with the worker in question. e letters described an alleged affair between the two employees and led to a confrontation in the workplace. e worker denied sending the letters or- making derogatory comments to either of the other employees. FCL determined the worker was respon- sible for personal harassment of the female employee. Its investigation found there was a pattern of gossip and harassing behaviour amongst the Filipino employees and found the worker was one of the leaders of that group. On July 31, 2012, FCL suspended the worker for five days without pay for violat- ing the company's harassment policy. e union grieved the suspension. e arbitrator found FCL considered the worker to be a leader in the workplace and led a harassment campaign against the female employee and the other male em- ployee. is was perhaps because he was a long-term employee who was often outspo- ken and influential. However, the arbitrator found there was no evidence FCL consid- ered the Filipino employees as a whole to be troublemakers or bad employees, so if the worker was a leader of that group, it didn't mean he should be responsible for a pattern of harassment by members of that group, said the arbitrator. e arbitrator also found the worker's blaming of equipment tampering on the male co-worker, along with other incidents involving the male co-worker, had nothing to do with the alleged harassment of the female employee – which FCL used as the basis for the suspension. ough the male employee and the female employee were friends, they worked in different departments and any in- cidents involving them and the worker were separate, said the arbitrator. Worker one part of gossipy workplace In addition, most of FCL's evidence of the worker's actions and comments were hear- say from various employees and there was no real proof, said the arbitrator. In fact, the arbitrator called into question the main incident with the female employee involv- ing comments about her face, as the worker denied making the comment and claimed he was only laughing at something another worker who was present said. However, the female employee took offence and became angry. What raised the arbitrator's suspi- cion was that the worker reported this inci- dent shortly after it occurred and the female co-worker did not report or speak to anyone about it that day – which wasn't consistent with her previous behaviour of reporting incidents immediately after they happened. As it turned out, she only reported the inci- dent after going home and discussing it with her husband. e arbitrator also found the allegations of blocking the aisles were exaggerated by the female employee, as he may have done so oc- casionally in the course of his work but the female employee didn't give any specifics. As for the letters sent to the spouses, the person who delivered them was described as similar to the worker, but other employ- ees also matched the description. Employ- ees interviewed theorized about who was responsible, but FCL had no proof it was the worker. Also, the company treated it as a do- mestic matter at the time and only included it in the harassment investigation after an- other employee brought it up. e arbitrator also found FCL didn't prop- erly investigate the tampering complaint filed by the female co-worker, as it didn't look into which employees were around at the time of the tampering. On some of the shifts, the worker worked the same shift as the female employee and couldn't have tampered with her powerjack unless he worked overtime once she was gone. However, there was no evidence he did nor that he instructed anyone else to do the tampering, said the arbitrator. e arbitrator found there were rumours about the female employee and the male employee throughout the warehouse and they were gossiped about by other employ- ees. e two employees helped fuel the rumours by asking others about them and FCL didn't have grounds to single out the worker for specific comments it knew about through hearsay, said the arbitrator. FCL also didn't properly investigate the threatening phone calls to the male em- ployee and simply inferred it was the worker without checking his alibi, activities or the phone records. e male employee con- firmed there was no actual death threat made, though FCL had noted it as such. e arbitrator determined FCL failed to prove the worker was involved in any spe- cific acts of harassment and used only hear- say and inferences as the basis for its imposi- tion of a five-day suspension for the worker. FCL was ordered to rescind the suspension and reimburse the worker for lost pay and benefits, with all records of the suspension removed from his file. See Federated Co-op- eratives Ltd. and Miscellaneous Employees Teamsters of Alberta, Local 987 (Mangawa- ng), Re, 2014 CarswellAlta 2207 (Alta. Arb.). « from HArASSEr on page 1 Most of the employer's evidence of the worker's actions and comments came from hearsay from various employees. « from ASk THE ExPErT on page 2 public online profiles, both Facebook and the Ontario Human Rights Commission have released statements stating that ask- ing for such passwords violates potential employees' privacy. For more information see: • Millhaven Fibres Ltd. ([1967] OLAA No. 4. • Kelly v. Linamar Corporation, 2005 CarswellOnt 6611 (Ont. S.C.J.). Lorenzo Lisi practices employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or www.airdberlis.com. Discrimination can result

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