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Dylan Hill
November 1, 2012

The Swinging Pendulum

Employer’s action disproportionate to offense

Gary worked in an industrial environment for a major employer for 31 years. He was terminated for making a comment at a meeting of technical staff attended by about 16 em- ployees, eight of whom were women. In response to a suggestion that the Employer hire four new technicians, Gary said words to the effect: “yeah, men only”. One of the women (Jane) at the table immediately stood up and challenged the comment.

That woman and another took the matter to their supervisor, Jim, immediately after the meeting. Jim, who had chaired the meeting and was sitting beside Gary said that he had not heard the comment but he said that he would speak to Gary.

The two women were dissatisfied with Jim’s response so they decided to take the matter to the Human Resources Department. HR conducted an investigation, which included an interview with Gary. The Employer determined that Gary had made the remark and failed to appreciate the seriousness of his misconduct. Gary held a prior record for similar behavior. That discipline was a three day suspension (about a year prior) for a vulgar remark he made about the woman who raised the issue about his comment in the meeting. Because of this prior record, the Employer concluded that termination was now the appropriate penalty.

The Union filed a grievance regarding the termination on Gary’s behalf. The Union position was that the Employer’s disciplinary response was a gross overreaction to what was a minor offense, and that Gary should have received “counseling at most…”. The Union sub- mitted that terminating an employee with 31 years of service, who had one disciplinary blem- ish on his record, was both egregious and unsustainable and that it was grossly disproportion- ate to the offense. The Union also submitted that the Employer failed to follow their own Respectful Workplace Policy with respect to the investigation. Finally, the Union submitted that the Employer’s disciplinary response to Gary was clearly discriminatory based on other cases that were addressed by the Policy, or should have been but were not.

Prior remark

About a year earlier, Gary made a comment about Jane. Jane was pregnant and he made a comment to a group of men that was described as “extremely vul- gar”. The remark was brought to Jane’s attention and she filed a formal complaint. The Employer hired an external investiga- tor and Gary was suspended for three days at the conclusion. In the Employer’s pro- gressive disciplinary process, a three day suspension was step four in a five step process; step five was termination.

Gary was also directed to supply a written apology to Jane and to undergo mandatory counseling. He completed these requirements.

Concerns

At the outset of the arbitration, Jane and another woman filed a letter with the Employer, who supplied it to the Arbitra- tor. The letter referred to their fear of re- prisals both inside and out of the work- place should the termination stand. They also expressed concern about Gary return- ing to the workplace, the message that would send, and the plan for reintegration. The letter referred to Gary’s continuos comments and attitudes regarding women.

Current remark

In the meeting, the technicians were discussing training with particular attention to the lack of training for new employees and the effect that had on the current em- ployees. Gary was the longest serving em- ployee and was at the top of the overtime list. The technicians rotated through cer- tain duties, some of which were less desir- able. Some junior technicians were not trained in these less desirable duties, so more senior technicians like Gary had to perform them more often. Gary had been

raising that as a concern with the Em- ployer for years. Gary also thought the training issues were gender based, as the two newest hires were pregnant and could not perform those less desirable duties for a time. It was with this context that the dis- cussion of new hires came up. There was some dispute as to the exact wording word- ing of Gary’s comment. During the inves- tigation, Gary denied that he had said “only men” should be hired and instead indicated that he said, “Yeah, you want to hire three guys.”

It is undisputed that Jane immediately challenged Gary’s remark. She stood up, shook her finger at Gary and told him that he had “just segregated” all the women in the room. Jane testified that Gary just looked at her without responding.

Gary testified that, when challenged by Jane, he sat back in his chair, put his hands up and said “sorry”.

Investigation

During the investigation by the Em- ployer, it was determined that Gary had indeed made the remark more consistent with the version that Jane recalled. In ad- dition, evidence was submitted about a conversation between Jim and Gary after Jane had complained.

Jim met with Gary and told him that the comment he made was not acceptable. Gary told Jim that the comment was meant only as a “quip” to another male employee. He apologized for the comment and said that he had not meant to offend.

Lacking Remorse

A significant part of the Employer’s case against Gary related to his failure to appreciate the seriousness of his miscon- duct and his accompanying lack of re- morse. The Employer also relied on Gary’s remarks, when first interviewed, that he thought the Company was making “a mountain out of a molehill”.

Decision

The arbitrator found that Gary’s re- mark was not a termination offense. He found that the words were uttered in the nature of a quip and without any intended malice or defined target. He noted that Gary had 31 years of service, only one blemish on his record and had no ability to affect the hiring and firing decisions of the Employer.

However, the arbitrator considered the letter filed at the beginning of the arbitra- tion by the Employer on behalf of Jane and the other female employee. He noted that the letter suggested Gary was guilty of a systematic course of harassment against women, and that he was capable of retalia- tory violence against women. The letter made him believe there was far more to the case than the remark itself.

The arbitrator waited for the Em- ployer to draw a more complete picture. He was waiting for proof that Gary’s re- mark was but an expression and culmina- tion of a systematic course of misogynistic conduct by Gary. He waited in vain.

Instead, the Employer indicated the decision to terminate Gary was based on his remark at the meeting only and nothing else.

The arbitrator found that the Em- ployer failed to prove Gary’s remark was part of a series of events and was not seri- ous enough by itself to warrant termina- tion. He imposed a 5 day suspension, which he characterized as an additional step of progressive discipline, taking into account the 3 day on his record. Gary was reinstated immediately, reimbursed for all lost wages (8 months), without any loss of seniority or benefits.

Dylan Hill
September 1, 2012

Did You Hit Your Head?

How a brain injury surfaces as a defense to sexual harassment years after the event

Mr Hogg worked for a Regional government in the capacity of Maintenance worker in one of their buildings. He worked with approximately 50 others, 95% of whom were female. Mr Hogg was terminated after about two years of service, for a variety of breaches to the Employer’s policies. In the letter of termination, the Employer also indicated that Mr Hogg was dishonest during the investigation and as such they possessed no hope of his rehabilitative potential. The Union filed a grievance of the termination on Mr Hogg’s behalf.

The termination letter outlined the reasons for termination which included: grabbing two female co-workers‘ buttocks; making an offensive and unwelcome comment to a male co-worker about his wife; asking a female co-worker if she was on her menstrual cycle; making sexual comments to co-workers with respect to his sex life with others; asking a female co- worker about detailed sexual experiences; making sexual gestures and comments about a “doweling” used to hold keys; and asking a female co-worker about the underwear she was wearing.

The Employer’s investigation was commenced by a complaint received by a male co- worker, Mr Troy who was working with Mr Hogg one day. Mr Hogg made a comment about Mr Troy’s wife and said that she liked it when he touched her buttocks. Mr Troy responded that if Mr Hogg made a comment like that again, he would knock out some of his teeth. Mr Troy reported the incident to the Employer and was concerned that he might be disciplined for making that comment to Mr Hogg. The Employer commenced an investigation, where numerous allegations about Mr Hogg emerged.

Several female co-workers testified that Mr Hogg referred to the size of his penis to them on various occasions. He made comparisons with a wood doweling that he carried with him that had keys attached to it. The female co-workers also testified that Mr Hogg made explicit comments about his sexual relations with other women. They indicated to him that his comments were “disgusting” and walked away when he made them.

Mother/daughter

Ms Cox and Ms Leach were mother/ daughter and working in the same unit. Mr Hogg made inappropriate comments to both of them. He also touched both of them on their buttocks on separate occasions.

Mr Hogg came up behind Ms Cox while she was bent over cleaning a toilet and grabbed her buttocks. She turned around, and he attempted to touch her breast. She asked what he thought he was doing. Mr Hogg said she had given him permission and she replied that she had not. He laughed and walked away. Shortly after the incident with Ms Cox, he did almost the exact same thing to Ms Leach. He also asked Ms Leach if she was “on her period” and asked her about the nature of her orgasms.

Mr Hogg made comments to both Ms Cox and Ms Leach that he would like to have a threesome with a mother/daughter combination. They replied that such a suggestion was disgusting.

Mr Hogg made a comment to Ms Leach that he could see through her pants and that he knew she was wearing “boy shorts”.

Environment

The Union argued that the environment in the workplace was permissive of sexual type comments between co-workers and claimed such comments were pervasive. The Union called several co-workers who gave evidence to this effect, however, testimony from Employer witnesses contradicted them. The Union witnesses relied on examples of past comments from employees who had long since left the work-place and/or had been disciplined for the behaviour.

Grievor testimony

Mr Hogg maintained that he had personal conversations with the female employees in question and said that they were initiated by the women. He said that they were comfortable in every conversation and instigated most of them. He did not deny most of the verbal allegations. In answer to the physical contact, he said that Ms Cox gave him explicit permission to “touch my ass any time”. He admitted to doing so on the occasion in question. He denied having touched Ms Leach in that manner and instead said that he had simply touched her hip to get her attention. Mr Hogg denied saying anything about a threesome. He said that during the Employer investigation, they asked him if he had “grabbed” Ms Cox’s buttocks and he replied that he did not because he had not grabbed it but had “touched” it.

Arguments

The Union argued that the Employer did not follow their own policy in relation to the investigation. The specific concern was that a complaint came from Mr Troy and then the Employer was concerned about Mr Hogg’s behaviour and investigated further.

The also Union also argued that as a result of an acquired brain injury, Mr Hogg had a “filtration” problem. The brain injury was sustained eight years earlier.

Experts

The Union and the Employer each called expert medical witnesses to speak on the brain injury component. Their testimony disagreed. The Union expert stated the brain injury contributed to his behaviour in the workplace and the Employer expert disagreed. The Union expert relied on evidence from a survey given to Mr Hogg’s mother about his behaviour before and after the injury.

There was also evidence submitted that there had been no previous medical concerns regarding sexually impulsive actions or comments in the preceding eight years.

Ruling

The Arbitrator ruled that the argument regarding following Employer policy had no merit. He stated that the policy is but one avenue to investigate and act, not the only avenue. He further stated that Mr Hogg had access to the grievance arbitration process to challenge any discipline assessed.

The Employer evidence regarding the environment was was preferred. The Arbitrator noted that the evidence presented by the Union witnesses was non-specific or dated.

The Arbitrator turned to Faryna v. Chorny to assess Mr Hogg’s credibility regarding the buttocks “touch” and preferred Ms Cox’s testimony to Mr Hogg’s. He asked the question: Why would a married woman, old enough to be his mother, give him carte blanche to lay a hand to that part of her anatomy?

The Arbitrator considered the brain injury. The crucial point was: if the behaviour was caused by a brain injury, it would not have suddenly surfaced eight years after the injury. The medical opinion preferred also indicated that any such impairment would likely cause more wide spread comments.

The Arbitrator concluded that the dismissal was justified and dismissed the grievance.

Dylan Hill
July 1, 2012

Long Service Temper

How an Employer dealt with a long standing anger management issue

Ms Leach was terminated after 28 years of service for allegedly uttering death threats against a co-worker and the Local President of the Union. Ms Leach admits to having an anger management issue, but denies the allegation.

Ms Leach began working for a City in 1983 and was awarded a position of labourer/truck driver in 1988. She was the first woman to hold such a position. Early into her performance of this position, her absenteeism became a problem. She attributed this to the stress and anxiety generated by gender based relationship problems with co-workers.

Ms Leach was first discharged from employment in 1989 and was reinstated by the award of an Arbitrator in 1990. The Arbitrator concluded that there was no evidence linking Ms Leach’s stress to any deliberate harassment from co-workers, but ought not be considered to have been absent due to deliberate acts of insubordination. Ms Leach returned to work.

In 1992 Ms Leach was discharged a second time. On this occasion she was reinstated during the grievance procedure.

In May 2001, Ms Leach received a non-disciplinary warning for arguing with and shouting at her supervisor, and leaving the workplace. In her evidence, she admitted that she had always had a “short fuse, and a bad temper”.

In November 2004, Ms Leach received a non-disciplinary verbal warning for angrily confronting a co-worker.

The latest situation stemmed from the selection of employees to attend training. There were more employees who qualified for the training than there were available spots. It was decided by management and the employees that the most fair way to determine participants would be to draw names out of a hat. Ms Leach was the only one who disagreed with the process. She was the senior employee and felt that she should go based on seniority.

Temper

Ms Leach refused to participate in the draw. The rest of the employees gathered for the draw and proceeded to draw names, including Ms Leach’s name. Just as the process began, Ms Leach came in, banged the door open, and started yelling and swearing. The incident took place in front of other employees and included lots of swearing, threats of filing a grievance and slamming of doors.

The employees were very upset, with several of them offering to give up their spots. Several were uncomfortable about going to the training.

Ms Leach was absent from work for a few days. She explained that she was so upset about the draw that she was under too much stress to return to work. When she returned, a meeting was established to discuss the incident.

Meeting

Ms Leach met with Mr Tomas (management) and Mr Jon (Local Union President). Ms Leach was angry, swore profusely and claimed management was out to get her. She cut Mr Tomas off and had her hand gesturing closely to Mr Tomas’s face. Mr Jon tried to calm her down. Ms Leach’s angry outburst continued for 10 minutes.

Ms Leach said that she could say whatever she wanted and there was nothing they could do about it. Mr Jon called an end to the meeting. A three-day suspension was imposed for Ms Leach’s misconduct in the draw meeting.

Absent

After the meeting advising her of the discipline, she was absent from work for three months. She returned to work after the Employer requested updated medical information. There was no formal return to work procedure.

Settlement

In December 2009 Ms Leach signed Minutes of Settlement which resolved a job competition grievance and a written letter of discipline revolving around absence without leave. In exchange, Ms Leach agreed to attend an anger management course, to be arranged and paid for by the Employer. The Employer also agreed to pay Ms Leach the sum of $2000 upon completion of the course which was explained as an additional incentive for Ms Leach to attend.

Ms Leach continued to have attendance issues and was meeting with management about the issues.

Ms Leach attended the anger management training and no concerns were raised by the facilitators.

Regression

Two days after Ms Leach reported the successful completion of the anger management counseling course, the incident occurred which led to her termination.

A meeting was held with the Union to determine how Ms Leach’s recent shoulder injury could be accommodated.

Mr Jon met with Ms Leach in private and came out of that meeting looking quite shaken. He insisted that he would no longer represent Ms Leach. When prompted, he shared that Ms Leach had threatened him. They were having a discussion about a past Union member who had passed away and Mr Jon said that they should not talk about him because he was dead. Ms Leach replied, “Yes, and you will be too”. An investigation into the threat was conducted and the Employer decided to terminate Ms Leach.

Denials

Ms Leach denied many of the allegations made against her but did admit to having an anger management issue. She felt that the Employer was deliberately building a case to attempt to terminate her.

Decision

In making the decision, the Arbitrator relied on extensive testimony from both the Union and the Employer side. He also referred to authorities presented by both sides. One part is particularly clear and instructive – a comment from C.G. Simmonds, who in the McCain Foods matter in 2002 said: “… What is certain, however, is death threats made in the workplace have no place in today’s society whether made in jest or seriously made. Indeed, society has become acutely aware that there is zero tolerance relating to such threats being uttered…” The Employer argued that termination was the only appropriate consequence of the case. The Union argued that the penalty of termination was out of proportion with the action of Ms Leach.

The Arbitrator found that it was more probable than not the Ms Leach said the words of which she was accused and in so doing uttered a death threat to Mr Jon. He found that the Employer reacted with appropriate deliberateness required by an allegation of workplace violence.

The Arbitrator concluded that the termination was justified. He stated that would not have been his conclusion if Ms Leach accepted responsibility for her actions or showed an appreciation for the seriousness of her conduct.

The grievance was denied.