Does piling boxes on a co-worker’s desk during a move constitute harassment? Does having your vehicle towed by your employer after you deliberately parked behind other vehicles, blocking them in, amount to intimidation? Does the employer have the right to change employee working hours to that of the posted hours of operation and in response to public complaints? Does moving a chair from a co-worker’s office to accommodate meeting needs when the chair is not being used amount to harassment? Does speaking loudly so that others can overhear comments made about a co-worker constitute intimidation or harassment?

All of these questions were addressed by Arbitrator Peter McKeigan in Canadian Union of Public Employees, Local 993 v. Cape Breton Regional Municipality, 2013 CanLII 90655 (NS LA).  The facts in the case seemed fairly straightforward. Glen Thistle (the “Grievor”) returned to work in 2009 after a leave of absence and claimed he was subjected to a series of actions and events that amounted to intimidation and harassment and caused him to suffer anxiety. Mr. Thistle and his doctors said that his anxiety might be alleviated if he were moved away from his immediate supervisor or given another position within the organization. The employer refused to move Mr. Thistle. It conducted an investigation and concluded that management had not engaged in harassment or intimidation. Further, moving him would not resolve the workplace conflict. Mr. Thistle refused to participate in the return to work plan and wouldn’t accept any accommodation other than being moved to another department or division. On October 17^th, 2012, the employer terminated Thistle’s employment as a result of his failure to return to work.

So, what happened? Glen Thistle was a 24 year employee who had no job performance issues, no previous history of innocent absenteeism, and no previous reports of a bad attitude in the workplace. The medical evidence clearly supported the diagnosis of anxiety caused by workplace interactions. Did those interactions he claimed amounted to harassment and intimidation cause him, an otherwise good employee, to abandon his position?

Arbitrator McKeigan assessed each allegation and found no employer harassment or intimidation. In relation to the changed work hours and moving a chair to permit people to attend meetings, the arbitrator found that these were things done in the usual course of business. The boxes piled on Mr. Thistle’s desk, which he refused to move not because of the nature or quantity of them but ‘on principle’ because he did not put the clutter there in the first place – Mr. Thistle was not required to clean the desk. As for Mr. Thistle’s car being towed, it was Thistle himself who stated that he knowingly parked in a place that blocked other vehicles. While it was not his intention to block the cars he did park knowing that it would be difficult for his supervisor to move his vehicle. Finally, when the Manager spoke loudly so that Mr. Thistle heard him say that `he was one step closer to the door’, while not appropriate for others to hear, McKeigan found this was not intended as intimidation and did not constitute harassment.

Finding no harassment or intimidation, the Arbitrator said, “There appears to be a selective perception on the part of the Grievor as to his interpretation of the events leading to his allegations.” “It was a workplace issue certainly because that is where the Grievor perceived problems arising; however it was a personality conflict in the workplace between the Grievor and his immediate supervisor Rick Fraser which was not initiated or caused by Rick Fraser.”

McKeigan referenced the workplace investigation as having materially arrived at the same conclusions although the report also found that there were some management practices that should have been put into effect so that a situation like this did not reach the point that it did. The report read in part, “[e]mployees should not be walking out the door without formal conflict resolutions: this produces a workplace which shows no respect.”

The workplace investigator was called as a witness in the hearing. As the Diversity Officer for the employer who conducted the investigation and someone trained in human rights investigations, his evidence was compelling.

The investigator did not find harassment or intimidation on the employer’s part. In his evidence he noted that Mr. Thistle felt that he could not return to work under his current manager; Mr. Thistle may still have been grieving the passing of his wife and so was offered EAP, which was refused; and Thistle was encouraged to apply for other positions, although he never did. The view expressed by the investigator was, “most times conflicts of this nature could be resolved in the workplace and that is the best place for [sic] to take place.” Significantly the investigator also stated, “[t]he issue with respect to the Grievor would not be resolved and he would not get over his anxiety simply by moving him to another position. It would be a quick fix and in his professional opinion it would not last.”

There were suggestions and proposals arising from the investigation report and the Return to Work Committee which indicated “had a strong probability of being successful” in returning Mr. Thistle to work. All of these were rejected by Mr. Thistle. He would only accept a move to another department. In the end, it would have been unreasonable to make the employer move Mr. Thistle to another department. The termination was upheld.

We have often written about the necessity for workplace investigations to be conducted in a fulsome and neutral manner by a trained workplace investigator. When a complaint is made by an employee, and when an investigation is conducted, the employer is then able to defend its actions if called upon to do so (see Nova Scotia Workplace Investigation Myths Debunked). Whether a series of actions or events constitutes harassment or personality conflict depends on the surrounding circumstances being examined. It is only after such an enquiry that an employer is able to undertake effective steps to resolve the outstanding issues.

Employers are often challenged when they need to determine whether workplace behaviour is harassment or just plain conflict. It is not enough for an employee to have an honestly held, but ultimately subjective, belief that he or she has been harassed. There needs to be more. The case law suggests that the “more’ threshold is relatively high. Behaviour properly characterized as harassment can include yelling, humiliating acts in front of others, bullying, name calling, and threats of violence to name a few. This case is helpful in that it suggests that certain types of behaviour, i.e. towing an employee’s car and making comments about a co-worker that can be overheard by others, while less than optimal, do not rise to the level of harassment.

Kenda Murphy