An Ontario arbitrator recently found an employer and supervisor jointly and severally liable to pay a grievor $25,000 in general damages after the supervisor harassed the grievor and the employer failed to properly investigate and rectify the problem.
The arbitrator found the supervisor harassed the employee by subjecting him to the following abusive conduct: ordering him back to work when others were not so ordered; unjustifiably complaining about his work; singling him out for phone use restrictions; refusing to allow him to leave early for vacation when others were so allowed; attempting to discipline him when it was not warranted; and making unfair demands on him with respect to work performance.
The employer argued that the arbitrator lacked jurisdiction to address the supervisor’s harassment because it fell into the category of tortious misconduct. The arbitrator rejected this argument on the following bases:
- It is an implied term of every collective agreement for supervisors to conduct themselves reasonably, in a non-abusive and non-harassing manner.
- Supervisors who abuse their authority by harassing employees are not administering the management rights clause in a reasonable manner and are in violation of the collective agreement.
- The collective agreement at issue established a Joint Health and Safety Committee to monitor and ensure the safety of employees and contained a provision suggesting employees consult the union if they had a concern pertaining to safety. “Safety” was found to embrace both an employee’s physical and psychological well-being.
- It is an implied term of the collective agreement for supervisors to conduct themselves in a manner consistent with the Occupational Health and Safety Act, R.S.O. 1990 c.0.1, which requires supervisors to take every reasonable precaution for the protection of a worker.
- Workplace abuse and harassment are properly the subject matter of arbitration between employers and unions.
The arbitrator concluded that both the supervisor and the employer were responsible for the manner in which the grievor was treated. Although it was the supervisor who directly harassed the grievor, the employer was “callously indifferent” to the harassment. The arbitrator found that the anxiety and major depression the employee suffered as a result of the harassment were aggravated by the employer’s inattention.
In addition to finding the supervisor and the employer jointly and severally liable to pay the grievor $25,000 in general damages, the arbitrator ruled that the grievor was to have “workplace immunity” from the supervisor who harassed him. This meant that if in the future the grievor was to bid or be transferred to an area where the harassing supervisor was present, the employer was to move the supervisor into an area where the grievor was not present. The arbitrator further ordered the employer to institute anti-harassment training for all managerial staff within a reasonable period, and to provide the union and grievor with proof of implementation.