Personal Harassment: Case Summary of Government of Nunavut and PSAC
By Victoria Reaume
An interesting arbitration decision was released recently which addressed an issue which will have resonance for any professional working in a small and isolated community. In the arbitration decision Government of Nunavut and PSAC (Kellett Grievance), May 2006, unreported (Knopf), Ms Kellett was Nurse in Charge in a community health centre in Qiktarjuaq, a small community on Baffin Island. In this capacity, Ms Kellett addressed a full range of issues including gunshot wounds, suicides, heart attacks and palliative care issues. Approximately two years after her acceptance of this position, a petition signed by 95 members of the community was filed with the Ministry of Health asking that she be removed from her position because she was allegedly rude to patients and disclosed personal medical information to the public. The Employer conducted a full investigation which concluded that there had been no misconduct, and that the complaint was unsubstantiated. Following this, no announcement was made to the community, despite the nurse’s repeated demands of her Regional and Executive Directors that they communicate with the community and exonerate her publicly.
Ms Kellett complained that the Employer had failed to protect her from community abuse and harassment and, in addition, that she had been humiliated, unsupported by her Employer, and made to feel like a scapegoat because of the Employer’s actions, and its failure to act. The collective agreement in question contained an explicit commitment by the Employer to promote a work environment free from personal harassment, with a clause that required the Employer to ensure that policies were in place to properly investigate and intervene in harassment situations. The arbitrator concluded that “a finding of harassment could only be made if there is objective evidence to support that claim.” In this case, the arbitrator found that the Employer had acted appropriately in its initial investigation, but following that, the Employer began a second investigation without having provided a clear mandate to the investigator other than to “look for issues” concerning her performance. During this second “investigation”, Ms Kellett was asked intrusive and humiliating questions about her health and was subjected to the “humiliation of having to trying to defend herself against amorphous and indefinable attacks.” The investigator went in to the community to ask whether Ms Kellett was “acting strange” and this could only lead to the impression that there was cause for concern.
This second “investigation” was done inappropriately and without a reasonable basis. These actions were found to be demeaning, humiliating and embarrassing, and constituted personal harassment. The arbitrator found that the Employer’s behaviour demonstrated a lack of support for a vulnerable employee; it developed no plan to lessen the likelihood of further abusive behaviour from the community; and fanned the fuels of suspicion, giving credence to unfounded rumours. Ms Kellett’s resulting emotional distress and humiliation were “completely foreseeable consequences” according to the arbitrator who awarded her general damages for emotional suffering in the amount of $12,500 plus compensation for counselling costs.
In sum, the Employer “could have, and should have” done more to fulfill its obligations to this nurse under the collective agreement according to arbitrator Knopf.
This decision builds on previous decisions which have awarded monetary damages for personal harassment (see, for example, the decision in Toronto Transit Commission and the Amalgamated Transit Union (Stina Grievance), 132 L.A.C. (4th) 225 (Shime). This type of harassment is not linked to the Human Rights Code; in this case it arose from a specific clause in the collective agreement. Where a professional is attacked by a community petition or complaints, this case ensures that the Employer must properly investigate the matter, support the vulnerable individual and not “fan the flames” of community animosity. Otherwise, the employer may be liable for damages under this type of clause in the collective agreement.