Canadian Labour Reporter

detrimentally affects the work environment or leads to adverse job-related consequences for the victims." The policy indicated key char- acteristics of harassment were one-sided conduct that was of- fensive and unwelcome, includ- ing remarks and physical assault. The centre followed up the re- lease of the policy with a booklet on maintaining a harassment-free workplace that stated that threat- ening behaviour and verbal or written threats constituted work- place violence that also fell under the definition of harassment. In spring 2013, there was some labour unrest among the centre's correctional officers as their col- lective agreement approached ex- piration. On April 26, 2013, all the correctional officers on duty de- cided to leave their posts and take part in an illegal strike. In all, 30 officers walked out and left four members of management and a nurse in charge of more than 450 inmates. On the day the illegal strike started, the director of the cen- tre approached a small group of correctional officers as they were about to leave their posts. The group had gathered in a walkway leading to the centre's entrance. The director had just been in- formed of the walkout and was disappointed the officers were choosing this course of action. According to three of the of- ficers, the director came up to them, formed his hand into the shape of a gun and said words to the effect of "my gun is loaded and it has bullets in the chamber for each of you." A fourth officer heard the words but didn't see the gesture. Three of the officers felt the director was metaphorically threatening their jobs. However, a fourth officer felt the director was making a threat to his physical safety and described it as a "death threat." The walkout lasted seven days and before the correctional of- ficers returned to work, they met with management to discuss an orderly return to work. The di- rector said the illegal strike was "water under the bridge" and they needed to move forward. How- ever, the correctional officer who had felt threatened in the walk- way incident at the beginning of the strike wanted an explanation. The director didn't recall what he had said to the group of officers but he said he apologized if he of- fended anyone and no ill will was intended. The officer appeared to accept the apology. Police, investigator find no harassment However, what the director didn't know at the time was that a couple of days earlier, the complaining of- ficer had visited the local detach- ment of the RCMP and made a complaint. He claimed he initially made the complaint just so it would be on file in case something else hap- pened at work later, but he later told the police to proceed with the investigation after he was fired with three other officers on July 8, 2013. The RCMP decided not to lay charges because it was difficult to determine a specific victim and there was a likelihood the officer was pursuing the matter only to be vindictive following his dis- missal. Following a grievance, all four officers were reinstated in Feb- ruary 2014 with suspensions. The officer who complained of harassment was given a three- month suspension. The centre hired an indepen- dent investigator to look into the officer's complaint. The investi- gator determined the director did say something to the group of cor- rectional officers that was inap- propriate, but a reasonable inter- pretation of the comments would not justify a fear of physical harm. Unhappy with the decision, the officer filed a grievance claiming he was afraid of the director and wanted him to be "dealt with as per policy." The officer also want- ed to not be supervised by the di- rector and be given $400,000 in punitive damages. Arbitrator weighs in Arbitrator Lyle Kanee agreed that the director approached the cor- rectional officers in the walkway, made the shape of a gun with his hand and said the words regarding bullets for each of them. However, he found that the circumstances were stressful and emotionally charged and the director's actions were a "momentary expression of frustration." Kanee noted that the director apologized as soon as the incident was raised in the meeting and didn't even remember the details. In addition, the other officers present didn't take it as a physical threat and the complaining of- ficer had spoken about the pres- sure he felt from the union to par- ticipate in the illegal strike, which may have contributed to his state of mind at the time, said Kanee. Kanee found that the centre's policy and booklet on harassment provided for a specialized com- plaint and investigation process, which the centre followed with its independent investigation. It rightfully determined that the di- rector's actions were not harass- ment in the context of the circum- stances. "There is a serious risk of trivi- alizing a label intended to address serious, problematic conduct by casting too wide a net," said Kanee. "It is incumbent upon individuals in the workplace to try to sort out their differences among themselves without rely- ing on formal processes or the in- tervention of third parties." Kanee determined the officer used the complaint and grievance process to "express his overall frustration with management and his general perception that he was not being treated fairly by his em- ployer." Though the director's conduct in the walkway was inappropri- ate, it didn't constitute harass- ment, said Kanee in dismissing the complaint. 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Bullets pg. 1 Employee used complaint to express frustration: Arbitrator Photo: Fred Thornhill (Reuters) An arbitrator ruled that while a director's comment about "having a bullet" for striking employees was innapropriate, it did not constitute harassment.

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