Canadian HR Reporter

Canadian HR RepoRteR February 23, 2015 employmeNt lAw 5 Jeffrey Smith Legal View NiagaraInstitute.com conferenceboard.ca Tools for Leadership Success Niagara Institute Leadership Training • Publications • Webinars B.C. employer puts an end to worker's ongoing harassment Union unsuccessfully tried to stop member's intimidation and harassment internally employers are becoming more sensitive to and aware of harassment and bullying in the workplace — both through their own initiative and increasing legal pressure from governments and interest groups looking to protect employees. Growing awareness of mental health issues is also a factor. A British Columbia arbitrator has upheld a worker's termination for years of bullying and harassment of his co-workers. Bruce Heuring, 55, worked as a tractor-trailer driver for a Port Coquitlam, B.C., liquor distribu- tion centre operated by Brewers Distributors. He was employed with the company for 24 years, working in various positions in- cluding warehouse worker and truck driver. His only discipline consisted of two written warnings and a one- day suspension, all related to driv- ing infractions. In August 2012, Heuring be- gan having issues with a female co-worker. One day, following a meeting in which the supervisor assigned work based on seniority, the co-worker went to claim the forklift she normally used, but she couldn't find the key. After about 30 minutes, Heuring came up to her at the forklift, held up the keys and asked, "Are you guys looking for this?" e co-worker was irritated and said she "told him off." ey didn't speak for the rest of the day, but the co-worker heard that Heuring had talked to oth- ers about the incident. Later that week, the co-worker overheard Heuring in the lunch- room making derogatory com- ments about the union plant committee and, in particular, its chair. Several weeks later, the same co-worker was walking in the parking lot when she saw Heuring in his car. She claimed he swerved towards her, gunned his engine, made eye contact and laughed as he drove away. She reported the incident to the plant committee chair. She also felt uncomfortable around Heur- ing following the incident and felt he was often staring and laughing at her. Some time later, the co-worker was talking to another driver in the warehouse when Heuring drove up on a machine. He told her she "better watch what you say because it will get back to the union." e co-worker angrily told him off and swore at him, at which point she claimed he lunged for- ward, trying to scare her. He said, "What did you say to me?" and she repeated her comment. Heuring drove off, laughing. Later that same day, the co- worker testified Heuring again drove up to her on a machine and asked her what her problem was. e co-worker mentioned the in- cident earlier that day and Heur- ing called her a rat who "didn't know anything about union loyalty." He also made a vulgar comment about her. On Nov. 27, 2012, the co-work- er went to the parking lot and saw Heuring in his car. She started to cross the laneway but testified Heuring drove straight at her. She said she defiantly refused to change her pace and just made it as Heuring drove by, headed to- wards the back of the warehouse where employees weren't permit- ted to park. The co-worker reported the incident to the plant committee chair again. e committee en- couraged employees to come for- ward, rather than reach out to the company, to resolve workplace is- sues. But after several weeks went by with no action from the com- mittee, the co-worker filed inter- nal charges against Heuring under the union's constitution. Heuring then approached her to discuss the matter but the co- worker said it was too late. e plant committee finally ar- ranged a meeting in January 2013 to discuss the charges. Heuring admitted to the initial parking lot incident and said he was trying to intimidate her. However, he ini- tially denied the second parking lot incident before finally admit- ting to it. In that one, he claimed the co-worker shared responsibil- ity because she jumped in front of him and provoked him by slowing her pace. Heuring also admitted to the vulgar comments and apolo- gized for them. However, the co- worker didn't trust the apology as she felt he had "a habit of doing something, apologizing and doing something again the next day." He was also known by her and others to be intimidating to co-workers through physical means and vul- gar comments. e next month, the union held two meetings to discuss collective bargaining proposals. At the sec- ond meeting, Heuring criticized the plant committee chair's prac- tice of meeting with a manager by himself. Others told him to sit down because the chair was away on vacation and not there to de- fend himself. e female co-worker — who was angry because she felt Heur- ing had made up stories about the chair in the past and had broken his promise to not speak badly about her or other workers — re- introduced her complaint. Later, after hearing about the comments, the plant committee chair confronted Heuring and they exchanged words. e chair had issues with Heuring as well, as Heuring had accused him of being too cozy with the employer and had made vulgar comments about him. Heuring claimed the commit- tee chair threatened him when he refused to apologize for his comments and filed a harassment complaint with the company. e company placed the committee chair on paid leave and launched an investigation. Employer takes action e investigation determined that the committee chair posed no real threat to Heuring, though some action should be taken. e chair was suspended for three days with pay. e investigation also uncov- ered some of Heuring's conduct towards the committee chair and the female co-worker, which raised concerns he had violated the company's harassment policy. The investigator interviewed the female co-worker and learned of the parking lot incidents and Heuring's comments. Another employee spoke of Heuring call- ing him names and challenging him to a fight. When Heuring was inter- viewed, he acknowledged mak- ing sexually explicit comments towards female employees. He also admitted to threatening to beat up a male co-worker, calling any workers who reported mis- conduct to the company "rats," and calling others profane names — even though he knew it was wrong. e company concluded "em- ployees were generally scared" of Heuring and he had embarked on a campaign of intimida- tion — Heuring was six-and-a- half feet tall with a large build. It also found he demonstrated no remorse or apologies, giving little hope his behaviour would change. On April 8, 2013, Heuring's employment was terminated for the "serious misconduct" of the parking lot incidents and com- ments that were "disgusting, de- rogatory and absolutely violating to a female." All of this misconduct violated the harassment policy, which stated violators would be subject to discipline up to and including dismissal, said the company. e union challenged the dis- missal as excessive. Arbitrator rules e arbitrator found Heuring's misconduct "involved serious cir- cumstances of harassment, bul- lying, intimidation, verbal abuse and threats of violence over a lengthy period of time. ough the union preferred to deal with matters internally, it was impor- tant to note that where a union is seen to be protecting an offender at the expense of a victim, it could put itself in breach of its statutory duties." In this case, the employees con- sented to the union addressing Heuring's misconduct, but this didn't work and the company had to step in. Heuring admitted to some in- stances of misconduct in both the union's and the company's inves- tigations, but tried to downplay or deny others. Either way, there was no denying the evidence of Heur- ing's pattern of misconduct, much of it related to his views of people who didn't support the union and were perceived as being too close to the company. "is pattern of intimidation and verbal harassment over many years continued over the time in which he occupied positions with the union," said the arbitrator. "I agree with the employer that all of (Heuring's) conduct amounts to the most serious and egregious forms of misconduct in the workplace." Heuring's behaviour was not that of someone who simply didn't think about how others would feel or didn't care, but rather was "often driven by hostility, antago- nism and spitefulness," found the arbitrator. e intent of his physical and verbal abuse was clear and by de- sign. e female co-worker indi- cated he was known for stopping when told by the union to stop and then starting again. It was believed the union couldn't control him, so it was up to the company to find a solution, said the arbitrator. Heuring's misconduct was suf- ficient cause for his dismissal and the company acted appropriately once it learned of his behaviour. Given his lack of acceptance of responsibility for his behaviour and the fear he instilled in other employees, there was no reason to have him back in the work- place that he had made "unsafe and toxic," said the arbitrator in upholding the dismissal. For more information see: Brewers Distributors Ltd. and Brewery Winery and Distillery Workers Union, Local 300 (Heur- ing), Re, 2014 CarswellBC 73 (B.C. Arb.). e intent of his physical and verbal abuse was clear and by design... it was believed the union couldn't control him, so it was up to the company to find a solution. Credit: Dmitry Kalinovsky/Shutterstock

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