Employer and schedule change

Author: Héloïse Jasson

Reviewed by: Me Alina-Mona Pase

The Arbitral Tribunal upholds a grievance for psychological harassment in the context of a schedule changes and task assignments below the employee’s skills

On March 31, 2022, The Arbitral Tribunal heard three (3) grievances contesting a schedule change, a complaint of psychological harassment, and dismissal induced by the presence of psychological harassment under sections 123.7 of the Act respecting labour standards¹ and 151.3 par. 3 of the Labour Code².

In a recent decision, Travailleurs et travailleuses unis de l’alimentation et du commerce, local 500 et Marché Plouffe Waterloo inc.³, the arbitrator considered the complaint of an employee who works as an assistant manager in a food market. The employee complained that his immediate supervisor had limited him to tasks which were below his skills and had isolated him by changing his schedule without any justification.

The facts of the case

The Plaintiff is an experienced butcher, who has been an assistant manager in the meat department at the Employer since 2005. In 2017, a new manager has been hired and becamethe Plaintiff’s immediate supervisor. The Plaintiff works from 6 AM to 3 PM, from Tuesday to Saturday. Everyone in the department works from 10 AM to 7 PM.

In 2019, a letter of agreement is signed, providing among other things, that the Plaintiff mustonly by scheduled one evening per week, after 6:30 PM, “unless waived by the employee and unless operational requirements do not permit”. This letter of agreement preserves for some employees the benefit of the schedules of the former collective agreement.

After the first week following the new manager took over, the relationship between the two (2) employees was difficult. Subsequently, the Plaintiff’s schedule was changed without any explanation from his supervisor or the store manager. After his sick leave, he was permanently assigned to the 10 AM to 7 PM schedule and, on some occasions, from 11 AM to 8 PM on Thursday.

Some of the behaviours alleged by the complainant as examples of harassment include:

• Within the first week of his arrival, the new manager meets with him and tells him todo what he wants « or we can get another assistant manager if you don’t do what I tell you”;
• The new manager tries to assert his authority over him and removes him from morning tasks;
• The new manager changes the Plaintiff’s schedule and modifies his tasks: closing the shelf, dismantling the machines, washing the tables and sinks, emptying the garbage cans in which it is forbidden to put bags;
• The Plaintiff, who is an experienced employee, is asked to clean the cooler in front of an apprentice butcher and her teacher at a time that is unusual for this task;
• The new manager complains about the Plaintiff’s speech impediment, which he has been dealing with since his treatment for oral cancer;
• A disciplinary notice is given to the Plaintiff for not checking the quantity of merchandise on the counter before leaving his shift.

Conclusion

a) Psychological harassment

The arbitrator upheld the grievance of psychological harassment on the grounds that the new manager’s behaviour, including the unjustified schedule changes in violation of the letter of agreement, isolated the Plaintiff professionally and confined him to tasks that were below his skills and experience, which constituted a form of psychological harassment.

b) Employer’s obligation

The arbitrator mentioned that the employer never worried about what was going on in the meat department between the manager and assistant manager, even though he was aware of the poor relationship between the two.

On the other hand, the manager is a representative of the employer who is required to ensure that employees enjoy a healthy work environment, free of any form of harassment. In this case, he was the main actor in the harassment. He, therefore, violated the employer’s obligation with respect to psychological harassment.

Practical Advice

Employers should think twice before proceeding with unilateral changes of duties for their employees, especially when the employees have been benefiting from the sAMe working conditions for a long time and no reason is given to support this change or at least no explanation is provided. Furthermore, and this should no longer surprise the reader, the employer must intervene as soon as it becomes aware of a problematic relationship betweenits employees, in order to respect its obligation to prevent and put a stop to any situation that could be or become psychological harassment. His vigilance is even more important when one of these employees occupies a management or an executive position.

Latitude Management is a multidisciplinary firm with a focus on investigations, mediations, training and consultation regarding issues arising from harassment, violence and discrimination in the workplace. Please do not hesitate to contact us to learn more.