HR | Atlantic - Positive Change at Work

Recent Arbitration Award Makes Enforcement of ‘Upstream’ Civility in the Workplace Akin to Swimming Upstream…

Jul 12, 2012

Much work is being done by workplace researchers, including those sponsored by the Mental Health Commission of Canada to encourage employers to act before negative workplace behavior deteriorates into harassment and bullying.   Research shows that civility in the workplace, including showing respect for each other, is an important factor for preventing employees from being exposed to the mental harm and injury that can result from bullying and harassing behaviors.   By analogy, we want to get at ‘upstream’ behaviors in order to prevent outright emotionally damaging conduct.

However, it appears that this message has yet to get out to the arbitrators, some of whom still show an acceptance of swearing as ‘shop talk’ and dismiss other uncivil behavior as being not worthy of discipline.   For example in 2009, Arbitrator Snow found that calling a co-worker a f***king bitch” under his breath  was not an ‘unusually serious offense”, and accepted this conduct as ‘shop talk’[1].  This tolerance of incivility was recently affirmed by Arbitrator Hood in Canadian Union of Public Employees, Local 47 v. Saskatoon (City).  He relied on long-standing arbitration rulings that “swearing under one’s breath when not directed at anyone in a work environment where swearing is common and reciprocal lack of engagement between co-workers has been held not to constitute harassment that”. In setting aside a three-day disciplinary suspension, Hood followed a long-standing line of cases that was established in 1982.  His ruling applied the test that in order to discipline for profanity in the workplace:

1. The profanity must be more than “shop talk;”

2. Employees must know of the employer’s prohibition on profanity; and

3. Profanity justifying termination must be more than one isolated outburst.

While much of the award was based on a finding of ‘lack of evidence’ (despite the employer having invested in a third-party investigation involving 54 interviews of 47 people), it is the Arbitrator’s approach to the impact of negative behavior, including swearing, that is most disconcerting.  In upholding the grievance, part of Hood’s reasoning was that City management was aware that there was swearing in the workplace and that it took no steps to countermand the behavior.  While he noted that not all swearing is equal, he accepted that the grievor’s comments that swearing under the breath wasn’t directed at any particular person.  This seems disingenuous.  Furthermore, other incidents with respect to this employee evidenced a pattern of negative behavior that had an impact on the workplace.  Indeed, during the grievor’s suspension, it was noted that the atmosphere in the workplace was much calmer.  Yet that seemed to have no bearing on the findings.

Arbitration awards appear to lag behind the social values and standards of liability that employers are expected to satisfy on other fronts.  Not that long ago, an arbitrator required an employer to continue to provide a smoking shelter for its employees because it was an ‘existing condition and benefit” — despite the fact that the employer was a hospital!  In this shop talk award,  employers are left scratching their heads about what they can do with employees who consistently exhibit negative, disrespectful and uncivil behavior in the workplace.  One of the take-aways from this decision is that discipline is an unreliable tool for affecting culture change.  While stronger evidence of the behaviors may have helped the employer’s case, the tone of Hood’s decision suggests that arbitrators will continue to use a scale of relativity in determining what is harassment.  This approach seems to fly in the face of recent court and workers compensation decisions that are holding employers responsible for these types of behaviors, and finding them to be harassing, the employers liable for damages to the psychological or mental health of the employee.

We need to find other ways of influencing behavior for a more civil workplace, by proactively teaching, coaching, messaging and role modeling in the workplace the acceptable behaviors, and ensuring that culture influencers in organizations (those who set the tone in the work unit) are not being empowered to be counterproductive.  To do that, we need to understand the most likely root causes of why people behave the way we do.

by Constance Robinson


[1] Niagara Region Police Association v. The Regional Municipality of Niagara Police Services Board.

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