Presented by: Rochelle Pauls

1. No Nonsense Manager or Bully?Respectful Workplace Issues Presented by: Rochelle Pauls

3. Reasons to Deal with Workplace Bullying • Harassment is disrespectful, degrading and demoralizing • Employees perform better in a harassment-free work environment • Legal considerations: • Workers’ Compensation Act • Human Rights Code • Constructive dismissal claims

4. What is Bullying? The act of intentionally causing harm to others, through verbal harassment, physical assault or more other subtle methods of coercion such as manipulation, including ignoring and isolating the person

5. Examples • Raising unsubstantiated performance concerns • Threatening and intimidating tactics and unreasonable demands • Yelling at, swearing or belittling an employee • Persistent and unfounded criticism • Vulgar and demeaning remarks to subordinate employees • Refusing to allow an employee to take breaks, attempting to discipline him without cause and holding him to a higher standard of productivity

6. Bullying vs. Legitimate Management Authority • The legitimate exercise of management authority is not bullying • An exercise of management authority may cross the line if it is unnecessarily harsh, cruel or vindictive

7. Zlatogourskaia v. Veisman (2005 Ontario Superior Court) • Employer severely reprimanded the plaintiff for leaving patient records unattended • In the course of reprimanding her, Mr. Veisman yelled and cursed • The court found the plaintiff had failed to establish Mr. Veisman’s conduct was unnecessarily harsh, cruel or vindictive

8. Bullying vs. Personality Conflicts • King v. Skyview Financial Advisors (2006 Ontario Superior Court) • Court found that the employee’s tense relationship with a co-worker who treated her with hostility did not impede her ability to do her job or subject her to any form of harassment • The matter amounted to a simple personality conflict

9. Bullying Bosses

10. Shah v. Xerox Canada Ltd. (2000 Ontario Case) • Mr. Shah worked for Xerox for 12 years • Took a new position with the company • Had always received good performance reviews, bonuses and pay raises before • 6 months into his new position, manager raised largely unsubstantiated concerns with his performance

11. Shah v. Xerox Canada Ltd. • At his review, he was told there were performance complaints against him • He was not provided with any specific details and his manager did not verify the complaints • Received an unexpected, unjustified and vague warning letter

12. Shah v. Xerox Canada Ltd. • Was asked to sign a list of tasks assigned to him for completion • He refused – many were unreasonable • Got another warning letter and was placed on probation

13. Shah v. Xerox Canada Ltd. • The court found that instead of telling Mr. Shah what was expected of him and giving him a chance to respond, his new manager became “more authoritarian, impatient and intolerant” • The manager’s treatment of Mr. Shah made his continued employment intolerable

14. Bullying Co-Workers • There is an onus on employers to prevent harassment from occurring between co-workers • An employer’s failure to prevent the harassment of an employee by co-employees can lead to a claim for constructive dismissal

15. Morgan v. Chukal Enterprises (2000 BC Case) • Plaintiff had been employed as a waitress at a pub for 13 years • Claimed the new kitchen manager treated her and the other staff with hostility and rudeness • He yelled, swore and belittled them, often in front of other customers

16. Morgan v. Chukal Enterprises • Owners took kitchen manager’s side • Admitted to the court that they were aware of his behaviour and tolerated it • Court ruled in favour of the plaintiff, finding that the situation was intolerable and represented a fundamental change in her working conditions

17. Hertz Canada v. Canadian Office and Professional Employees’ Union(2011 Grievance Arbitration) • Arbitrator found that an employee had been the target of an intentional silent treatment by the grievors and that this conduct constituted harassment • They “stopped talking to him” in vehicles while on their way to collect cars and drive them to other locations

18. Consequences of Bullying • Increased absenteeism, turnover and stress • Increased recruitment costs • Decreased workplace productivity, morale and customer service • Increased risk of accidents and incidents • Reduced corporate image and customer confidence • Legal liability – human rights and constructive dismissal

19. Human Rights Liability • Human Rights Code prohibits discrimination in employment • If workplace bullying and harassment involves one of the protected grounds, an employer can face liability under the Code • Remedies can be substantial

20. McIntosh v. Metro Aluminum Products et al. (2011 BC Human Rights Tribunal) • Tribunal awarded the complainant lost wages and expenses of $17,394.65 and $12,000 for injury to dignity • Subjected to sexual harassment • Was briefly engaged in an affair with the owner of the company • After it ended he continued to send inappropriate text messages, which got progressively more offensive

21. Wutke v. Mageria Holdings (2006 BC Human Rights Tribunal) • Complainant worked as a cook in a pub • Suffered from short-term memory problems and chronic back pain • Kitchen staff yelled at her frequently • Inferences that her memory problem resulted from drug use • Introduced as a “space cadet” to a new employee

22. Wutke v. Mageria Holdings • Tribunal found that her manager knew she had memory problems and should have been more sensitive to how things were said to her • Should have explained to the other staff that they should not speak to her in such a manner

23. Liability for Constructive Dismissal

24. Liability for Constructive Dismissal • A constructive dismissal claim may be made if an employee leaves because of intolerable working conditions created by bullying and harassment • Employee can seek compensation for reasonable notice of termination

25. Liability for Constructive Dismissal • Examples: • Shah v. Xerox – 12 months notice • Morgan v. Chukal Enterprises – 13 months notice • Likely to find constructive dismissal where the treatment is so unfair or harsh as to create intolerable working conditions under which it would be unreasonable to expect an employee to keep working

26. Bullying Legislation • Occupational Health and Safety Regulation includes a section on “Violence in the Workplace” • Federal jurisdiction also has regulation with respect to workplace violence • Current B.C. Legislation only prohibits physical violent workplace harassment

27. Conclusions • Prevention is the key • Conduct will sometimes be questionable – not every inappropriate management decision will constitute bullying • Awareness and communication are essential

28. What’s New in the Zoo? Labour & Arbitration Update Presented by Taryn Mackie

29. What’s New at the Zoo? • Drugs • Privacy • Drugs • Privacy

30. Audience Poll… Random Drug & Alcohol Testing

31. Random Mandatory Alcohol Testing • Enter Re Irving Pulp & Paper, 2011 NBCA • Kraft paper mill that in 2006 unilaterally adopted a workplace policy that included mandatory and random alcohol testing • Testing was limited to a breathalyzer • Testing was limited to employees performing safety sensitive jobs

32. Random Mandatory Alcohol Testing • Re Irving Pulp & Paper, 2011 NBCA • The “randomness” of the testing was accomplished by having the names of the 334 eligible employees selected by an off-site computer • In any 12-month period, the computer would select 10% of the names on the list

33. Random Mandatory Alcohol Testing • Re Irving Pulp & Paper, 2011 NBCA • An employee who occupied a safety sensitive position was randomly tested • The employee’s test results revealed a blood alcohol level of zero • Nevertheless, the Union filed a policy grievance challenging the “without cause” aspect of the random mandatory alcohol testing policy

34. Random Mandatory Alcohol Testing • Re Irving Pulp & Paper, 2011 NBCA • A union has the right to challenge a workplace policy unilaterally imposed by management on the basis that the rules fail to meet the KVP test, which requires, for example, that: • The rule be consistent with the collective agreement • The rule be reasonable • The rule be clear and unequivocal

35. Random Mandatory Alcohol Testing • Re Irving Pulp & Paper, 2011 NBCA • The Union in this case challenged the random mandatory alcohol testing on the reasonableness criterion • At arbitration, the Board balanced the privacy interests of the employee against the safety interests of the employer, and found that the policy was unjustified because the employer failed to establish a need for the policy

36. Random Mandatory Alcohol Testing • Re Irving Pulp & Paper, 2011 NBCA • According to the Board, the employer could not demonstrate that the mill operations posed a sufficient risk of harm that outweighed an employee’s right to privacy • Specifically, the Board noted that there was no evidence of prior incidents of alcohol impaired work performance at the mill and the mill was not an “ultra-dangerous” place

37. Random Mandatory Alcohol Testing • Re Irving Pulp & Paper, 2011 NBCA • The majority of the NBQB ruled to set aside the Board’s decision • The NBQB found that if the “potential for catastrophe exists”, no prior incidents should be required • The NBQB also noted that the breathalyzer requirement was minimally intrusive and the testing was limited to safety critical positions

38. Random Mandatory Alcohol Testing • Re Irving Pulp & Paper, 2011 NBCA • The NBCA dismissed the union’s appeal • Past alcohol-related problems are not required if the workplace is “highly” or “inherently dangerous” • “Highly” or “inherently dangerous” workplaces include employers involved in the production and refining of oil products or chemicals and employers in the mining and forestry sectors • The NBCA noted some resistance to classifying trucking operations as “inherently dangerous” • To be continued before the SCC…

39. You be the Judge… Follow your nose?

40. Do you follow your nose? • Re British Columbia Maritime Employers Assn. 2012 CLAD • 30-day suspension imposed on the grievor for suspected drug use at work • The grievor was found in the dock office with the strong smell of marijuana in the air • The grievor denied using drugs • The grievor was in a safety sensitive job

41. Do you follow your nose? • Re British Columbia Maritime Employers Assn. 2012 CLAD • Witnesses testified that the office was used by many people and “sometimes stinks” • The office typically contained dirty coveralls and garbage

42. Do you follow your nose? • Re British Columbia Maritime Employers Assn. 2012 CLAD • The grievor described the site as “a potash, coal and canola oil site with piles of steaming crud all over” • There were many animals onsite as well, such as skunks, geese, and raccoons • It was not uncommon to smell skunk

43. Do you follow your nose? • Re British Columbia Maritime Employers Assn. 2012 CLAD • The arbitrator set aside the suspension • Although the foremen believed that they smelled marijuana in the office, the employer’s application of “the nose knows” test was insufficient; the foremen were not experts • The grievor’s conduct was not particularly suspicious (e.g. no attempt to conceal anything and no signs of impairment)

44. Do you follow your nose? • Re British Columbia Maritime Employers Assn. 2012 CLAD • The arbitrator set aside the suspension • There was no “direct, clear, or cogent link” to the grievor smoking marijuana at the dock office • Circumstantial evidence of smell alone is insufficient to establish that link

45. You need something more… [Insert clip from 1:51 – 2:11] http://www.youtube.com/watch?v=pTMRYbhPbZE

46. Do you follow your nose? • Re British Columbia Maritime Employers Assn. 2012 CLAD • The arbitrator set aside the suspension • To succeed, the employer must show, on a balance of probabilities, with cogent evidence that: (1) the smell was marijuana; and (2) the grievor was smoking marijuana

47. You be the Judge… Union Access to Personal Information

48. Union Access to Personal Information • Re Port Transport, 2011 BCLRB • In preparation for collective bargaining, the Union asked the Employer to produce certain personal information about employees in the bargaining unit, including their: • Names, addresses, telephone numbers, dates of birth, e-mail addresses, benefit coverage data (single, family, enrolled, ineligible, etc.), wage rates, premiums, job classifications, vacation entitlements, benefit usage data, etc.

49. Union Access to Personal Information • Re Port Transport, 2011 BCLRB • The Employer refused and said that, in the interests of protecting employee privacy, it would not disclose their personal information to the Union unless the employees had provided written consent to the Union permitting this disclosure

50. Union Access to Personal Information • Re Port Transport, 2011 BCLRB • The Employer added that if the Union was able to obtain their written consent, the Union should at the same time obtain the information it sought from the bargaining unit members themselves • In the Employer’s words, the Union should just “make the effort” • The matter went before the Labour Board