Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 Canadian Employment Law Today | 9 Cases and Trends « from A FAILURE on page 1 e agreement also stipulated the com- pany and the union would jointly meet with all employees to communicate their com- mitment to a workplace free of harassment and discrimination, including how com- plaints would be handled. Henderson was satisfied with the settle- ment and felt she and the company had put the issues behind them. She returned to work two days after the settlement, on Aug. 22, 2014. Matter had not been put behind them On Aug. 30, Henderson attended a "tool box meeting" with the maintenance supervisor in the morning. ese meetings were regu- larly held at the beginning of each day with employees for discussion and going over any instructions. ere was a discussion in the meeting on how to make the company a better place to work. According to Henderson, the super- visor -- who had been involved in Hender- son's grievance and complaint – looked at her and said, "at mediation…you guys don't realize how it affected me." Henderson responded, "I do have an idea how it affected you." Henderson testified she felt singled out in front of her co-workers at the meeting and said the others looked at her after the com- ment was made. After the meeting, Henderson and a co- worker went to a welding table to start work. Henderson and the co-worker both testified that the supervisor came over to them and told them the mediation had affected him personally and financially, as the company was blaming him for the complaint and his raise was being delayed. He claimed that "until that grievance was filed, the superin- tendent's job was mine." Henderson said she told the supervisor it wasn't about him and his name was never on the grievance. Henderson's next shift was on Sept. 4, and she reported the supervisor's com- ments at the tool box meeting and at the welding table to the human resources plant co-ordinator. e co-ordinator told her she shouldn't have waited until her next shift to report it and said he would talk to the plant manager about it, after which he would get back to her. After a couple of weeks, Henderson hadn't heard anything so she saw the plant manager and told him she was upset about it. A meeting was held and the plant man- ager asked the new maintenance supervisor to conduct an investigation after which he would inform Henderson of the results. Henderson later met with the plant man- ager and investigating supervisor and they told her after talking to some people, they couldn't find any corroboration of her alle- gations. e shop steward with Henderson suggested there were others present who should be interviewed, so the supervisor talked to two more employees before issu- ing his final report. e investigating supervisor's report indicated all but one employee either said nothing was said at the tool box meeting or they couldn't remember. e one differing employee said Henderson's co-worker had pressured the other supervisor for com- ments about the arbitration. e two addi- tional employees he talked to indicated the arbitration was brought up in the tool box meeting and agreed the other supervisor had mentioned something about how it had affected him. In his interview, the other supervisor de- nied making the comments in the meeting or approaching Henderson at the welding table afterwards. Instead, he claimed Hen- derson and her co-worker had come to his office to tell him the earlier grievance had not been about him, and at that point he told them about the negative impact it had had on him. Henderson and the co-worker both denied going to the office. e investigation report noted that the accounts of the tool box meeting and the meeting at the welding table by Henderson and her co-worker were "almost an exact re- telling of the train of events with some of the same words," and the co-worker's account seemed rehearsed. In addition, the mainte- nance supervisor said he thought the other supervisor was experienced and "I can't see him doing what they allege particularly right after an arbitration." e report concluded that Henderson and her co-worker had made up the story about the comments in the tool box meeting and there was no independent verification of the incident at the welding table. Hender- son filed another grievance alleging further harassment, discrimination and retaliation in the wake of the settlement agreement from the first grievance. Flawed investigation e arbitrator found there were flaws in the investigation in that the investigating super- visor focused on the lack of corroborating witnesses with regard to the welding table encounter. However, there was evidence there were some comments made regard- ing the mediation in the tool box meeting, including the other supervisor mentioning the effect it had on him. In addition, the investigating supervisor's only reason for determining Henderson and her co-worker were colluding and ly- ing about the welding table encounter was that their stories were too similar, "yet he does not consider that their stories might be similar because they both heard the same things." e arbitrator found the other supervi- sor had made a comment about the effect of the mediation on him in the tool box meet- ing and the employer ignored the evidence that pointed to it actually happening. is comment – and the alleged additional com- ments at the welding table – came only a few days after the settlement agreement when feelings were still sensitive. is made Hen- derson feel as though the supervisor wasn't letting go of things and was getting back at her for filing her grievance – which wasn't appropriate under the settlement agree- ment, I.G. Machine's harassment policy, or the B.C. Human Rights Code ground of discrimination based on gender, said the ar- bitrator. "I believe that (the first supervisor's) in- tent was not to hurt Meghan Henderson but rather he was expressing his own hurt feelings in a form and manner which were inappropriate," said the arbitrator. "(His) ac- tions were a breach because they had the ef- fect of upsetting Meghan Henderson in cir- cumstances that a reasonable person would perceive as harassment and retaliation for making her original grievance, or the hu- man rights complaint that she withdrew." e arbitrator also found I.G. Machine accepted the report and treated the matter as if Henderson's complaint was only about the welding table encounter, while ignoring the part of her complaint about the tool box meeting. e company was ordered to pay Henderson $2,000 for injury to her dignity and feelings from the additional harassment and the arbitrator recommended the first supervisor be trained on dealing with the is- sues stemming from the grievance that were causing him angst. For more information see: • I.G. Machine and Fibres Ltd. and IA- MAW, Local 692 (Henderson), Re, 2015 CarswellBC 1034 (B.C. Arb.). Investigator didn't believe employee's story The investigator's only reason for finding the employee and her co-worker were colluding and lying about the encounter was that their stories were too similar, 'yet he does not consider that their stories might be similar because they both heard the same things.'

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