An arbitrator has dismissed all harassment complaints against striking workers at Ontario’s Workplace Safety and Insurance Board, ruling that calling colleagues “scabs” and criticizing management falls within acceptable conduct during labour disputes.
Arbitrator Bernard Fishbein found that behaviour considered inappropriate in normal workplace circumstances may be protected during lawful strike activity, according to his Sept. 4 decision.
Strike context drives ruling
Fishbein dismissed 11 complaints filed by employees who continued working during a lengthy strike by the Ontario Compensation Employees. The complaints alleged striking workers violated WSIB’s Code of Business Ethics and harassment policies through intimidating behaviour.
The complained-of conduct included calling non-striking employees “scabs,” monitoring their work activities, threatening to report them to the union, and making derogatory comments about WSIB leadership, according to the decision.
“A strike is not high tea at the Empress Hotel, particularly a long and bitter one,” Fishbein wrote in the decision. He noted that emotions necessarily run high during extended labour disputes.
Normal workplace rules don’t apply
The arbitrator found that while some conduct might violate workplace civility rules under normal circumstances, it could not be condemned during “the extraordinary circumstances of a strike where each party is engaged in economic warfare,” according to the decision.
Fishbein ruled that vocal displeasure from striking workers toward those continuing to work “can hardly be described as surprising” and falls short of harassment or intimidation under the workplace policies.
The decision states that some misconduct during strikes could still warrant discipline if sufficiently serious, such as assault, but none of the allegations reached that level.
Remote work factor
The arbitrator noted that much of the bargaining unit’s work occurs remotely from home by computer, and none of the complained-of activity happened during actual picketing at WSIB offices, according to the decision.
Most conduct occurred through emails and chat rooms, which differs from direct confrontations where employees might have no easy escape, Fishbein wrote. He noted complaining employees could have deleted offensive emails or left unpleasant chat rooms.
No credible threats found
The ruling found no specific threats of violence against particular employees. Fishbein characterized some comments as “clearly over the top hyperbole” or remarks in “poor taste” but not rising to harassment levels during a strike context.
Examples included posting pictures of burning houses with inflammatory captions and comments about offering “scabs” a “quick trip down a flight of stairs,” which the arbitrator described as inappropriate but not constituting genuine threats, the decision states.
Union objections preserved
The Ontario Compensation Employees Union had raised preliminary objections including that workplace conduct codes cannot apply during strikes and that WSIB was retaliating against workers exercising their right to strike, according to the decision.
Fishbein did not rule on these objections since he dismissed all complaints at the investigation stage. The union had also filed an unfair labour practice complaint with the Ontario Labour Relations Board regarding the harassment complaints, but this was resolved as part of the overall strike settlement, the ruling notes.
Employer policy considerations
The decision shows the challenge employers face when workplace harassment policies intersect with protected strike activity, according to the ruling. While employers must maintain harassment-free workplaces, normal conduct standards may not apply during labour disputes.
Fishbein was appointed under the strike settlement agreement to investigate complaints and determine whether they should proceed to full adjudication, the ruling states.
