'Don't use the word 'bullying', you know we'll have an investigation,' says HR head
In a recent appeal, the Workers’ Compensation Appeal Tribunal (WCAT) in B.C. looked at whether an employer committed a “prohibited action” when it terminated the services of its VP Sales.
In a December 2021 decision, the province’s Workers’ Compensation Board found that the VP Sales had made out a case of prohibited action. The Board further found that the employer had failed to rebut that case. Consequently, the Board concluded that the employer had engaged in prohibited action contrary to the WCA.
The employer disagreed with the Board’s decision and appealed to the tribunal.
Conflicts with other executives
The employer sells household wares, including cooking products. The employer contracts with many independent contractors to sell the employer’s product. These independent contractors are referred to as the “field,” and it is they who locate customers and re‑sell the employer’s products to those customers.
An independent contractor in the “field” also recruits other independent contractors. This increases the size of the field and the employer’s ultimate sales, or what is referred to as a multi-level marketing system.
The VP Sales worked successfully with similar multi-level marketing organizations, particularly in the United States.
As the employer wanted to expand, it decided that the VP Sales could assist and entered into a “contract for services” with her in July 2017, where the terms referred to her as a “consultant” and identified as a US resident, with her “place of business” in the US.
The employer said it has been “relatively satisfied” with the VP Sales’ performance at the beginning. However, it noted “some areas of difficulty, including interpersonal friction” between the said VP and the VP of Marketing.
Further tensions arose when the employer hired another senior executive, the “General Manager US,” to oversee its expansion into the US.
It was then that the VP Sales “felt that others in the employer’s executive team, including the CEO, were not taking her side.”
The VP Sales said she was “being undermined and marginalized in her role.” On the other hand, the employer said it noted “increasing concerns about the VP Sales’ interpersonal style and some other elements of her performance.”
Toward the end, the VP Sales provided services “for a little over 21 months.” At that point, the employer decided to terminate the contract upon providing five days’ notice.
The aggrieved VP
Almost one year after her termination, the VP Sales filed her complaint of prohibited action with the Board.
In her complaint, the VP Sales stated that she carried out the services under the Contract 50% of the time in her home State and 50% at the employer’s head office. This was a full-time role, requiring about 60 hours of her time per week. The VP Sales asserted that she had no other source of income.
The VP Sales said her performance “was going well” but said that when the employer hired a new VP for Marketing and the General Manager for the US, the VP Sales said she felt she was “being undermined” and that the two new executives were “imposing themselves on my work in an intimidating and aggressive way.”
The VP Sales thought her relationship with the employer’s CEO “deteriorated as a result,” and she “feared for her job.”
Bullying allegations
She then described a meeting with the CEO, the VP Marketing, and the General Manager US. Two members of the VP Sales’ team were also present.
At the meeting, the VP Sales described three other executives “loudly and aggressively berated me for two hours.” The VP Sales said she “felt intimidated, abused, and humiliated,” especially because it “took place in front of the VP Sales’ subordinates.”
In another executive meeting the following day, the VP Sales said she “raised her treatment” and said she “sensed favouritism” among the executive. Additional meetings took place with the Chief Creative Officer (CCO).
The VP Sales said that during these meetings, she experienced being “aggressively accused of causing a disturbance in relation to my complaints.”
She said she was the victim of bullying, particularly at the hands of the VP Marketing and the General Manager US. Despite these comments, the CCO did not investigate or do anything to address the VP Sales’ concerns.
The VP Sales then complained to the VP Human Resources about the bullying, but she was told not to “use that word, you know we’ll have to do an investigation.” The VP Sales confirmed that she wished for an investigation and for the bullying to stop.
The VP Sales then described a meeting with the CCO where she was bullied again. She then learned that the contract was terminated a short time later and was offered a different contract which she felt was “effectively a demotion.”
She rejected the new contract offer, at which point the parties’ relationship was at an end. The VP Sales felt that the employer’s actions were “retaliation by the employer for her allegations of bullying.” She then concluded that she had been subject to prohibited action. The employer argued that she was not a “worker” as defined by the WCA.
HRD previously reported about a case of estrangement between directors that meddled with the issue of workers’ underpayments.
In another case, the Supreme Court of Victoria dealt with an HR manager who believed she was wronged after a meeting left her “distressed” over a negative performance review.
Was the VP a ‘worker’?
In the WCAT’s decision, the tribunal said that the VP Sales is a worker.
“She carried out her duties pursuant to a contract of service and not pursuant to a contract for services,” it said, adding that the term “includes every person who has entered into or works under a contract of service… written or oral, express or implied.”
The tribunal also explained the four key stages of a prohibited action complaint:
- “A worker must suffer the kind of negative employment consequences described in the Act.
- That worker must have engaged in the type of safety activities protected under the Act.
- There must be a causal connection between the negative employment consequence and the safety activity in question.
- If the worker succeeds in establishing these three elements, he or she is said to have demonstrated a prima facie or basic case of prohibited action.”
The employer’s motivation
The tribunal noted the employer’s motivation for termination of the contract was “an effort to improve the increasingly toxic atmosphere at the senior leadership level.”
“That the employer substantially blamed the VP Sales for this toxicity may be unfair or even incorrect; however, that is not a matter that falls within the prohibited action provisions of the Act,” it said.
The tribunal reminded the VP Sales that a “prohibited action is not a proxy for unjust dismissal or other workplace grievances.”
“It is not concerned with whether the VP Sales was treated fairly or not in relation to workplace dispute. Nor is it a remedy for bullying or other types of misconduct by an employer. Prohibited actions are concerned only with protecting workers who raise safety concerns from retaliation for raising those concerns,” it explained.
Ultimately, the tribunal said this is not a case of prohibited action, consequently favouring the employer. The application was dismissed.
