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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.

Dylan Hill
March 1, 2012

Phrasing is Important

How the decision to address a situation was right, but the words were not

Ms Krout is an elementary teacher employed in an Eastern School District. When she was seven and a half months pregnant, Ms McGintey (her Principal) spoke to her about the attire she wore to school that day, telling her she was dressed inappropriately. A grievance was subse- quently filed.

The Union objected to the Principal having spoken to Ms Krout about her attire and, in any event, objected to some of the comments made by the Principal to the grievor. The griev- ance stated that Ms Krout was subject to intimidation, harassment and discrimination, includ- ing sex discrimination, and that the Employer exercised its management rights in an arbitrary, discriminatory, unfair and bad faith manner.

Both Ms Krout and Ms McGintey testified at the grievance hearing. While they testified to similar effect about a number of matters that were discussed during their conversation, they had different recollections about whether certain statements were made by Ms McGintey. Therefore, it was necessary for the Arbitrator to decide which version of events occurred.

Both Ms Krout and Ms McGintey were emotional at times during their meeting and the Arbitrator felt it was possible that their heightened emotions at the time impeded their ability to absorb and retain the details of the conversation with precision. As well, both testified more than two years after the conversation in question, and “recollections naturally tend to fade with the passage of time.”

The Arbitrator concluded, for a number of reasons, that in most areas of dispute concern- ing key aspects of their conversation, Ms Krout’s version of events was to be preferred. Ms Krout had a very clear and precise memory of certain things Ms McGintey said. She told three colleagues, her husband and her Union representative about the statements later that same day. She also wrote notes later that day with the detail of many of the statements made during the conversation.

Ms McGintey spoke to the Vice- Principal and Superintendent about what had happened, but she made no contem- poraneous notes of the conversation, only writing down her recollection of the con- versation some five months later.

History

A few years ago, Ms Krout was teach- ing at the school and Ms McGintey be- came the Principal. During Ms McGintey’s first year there, she received a few expres- sions of concern about some of the outfits Ms Krout and another teacher wore to school. Ms McGintey, herself, had con- cerns about the appropriateness of some of their clothing. For a number of reasons, she decided not to speak to either of the teachers about their clothing that year. She was new to the school and wanting to tread carefully with the staff for the first year. She was also uncertain what the rules and workplace standards were for that particu- lar school. Also, the Code of Conduct at the time did not clearly prohibit the sort of attire occasionally worn to school by Ms Krout and the other teacher.

That year, the Code of Conduct was amended, so that for the following school year it would include the statement that “Underwear cannot be showing and no revealing necklines.” Parent and staff groups approved the changes but the Un- ion was not asked for input or approval.

Conversation

The first day of school for the new school year was September 7. Ms Krout was seven and a half months pregnant. Ms McGintey saw no staff that were in her opinion dressed inappropriately, including Ms Krout.

The next day, Ms Krout wore a blouse and camisole to school that did not cover an inch or two of the top part of her breasts and her cleavage. Ms McGintey saw her sometime that morning and asked to speak with her, without telling her what it was in regard to.

Ms Krout and Ms McGintey met alone, later that day in Ms McGintey’s office. Ms Krout could tell that Ms McGin- tey was upset and asked her about it. Ms McGintey replied that she was as they were about to have a difficult discussion. After some hesitation, Ms McGintey told Ms Krout that the size of her breasts were dis- tracting to staff and students, and that she had received complaints about the appro- priateness of some of her clothing.

Ms Krout was upset by the comments. She told Ms McGintey she was seven and a half months pregnant and asked what she was supposed to do about her breasts. Ms McGintey told her that she needed to wear clothing that drew less attention to her breasts and told her she was not to wear clothing with a revealing neckline.

In response to some questions, Ms McGintey said that perhaps she was more prudish than Ms Krout. Ms Krout said she did not feel her clothing was inappropriate and said that she would have to wear a tent to hide the fact that her breasts were large.

Ms Krout pointed to other staff who were dressed in a similar manner and asked Ms McGintey if she had spoken to them. Ms McGintey said that she had not seen that staff member that day. Ms Krout asked for the names of people who had complained but Ms McGintey would not tell her.

The conversation became increasingly confrontational, emotional and upsetting. Ms Krout said that she felt she was being discriminated against and that she had a case for discrimination and was going to look into it. The meeting ended on that note.

Hearing

The Union argued that there was nothing inappropriate about the attire worn on the day in question. The Union also argued that the treatment of Ms Krout was discriminatory, as no other staff were talked to in spite of similar clothing.

The Employer argued that Ms McGintey correctly applied the rule. Fur- ther they argued that no evidence was pre- sented that she saw others dressed in a similar manner.

Ruling

The Arbitrator ruled that Ms McGin- tey properly concluded that Ms Krout’s attire breached the rule. He found nothing discriminatory or improper about Ms McGintey’s decision to speak to Ms Krout about her attire that day. He concluded that Ms McGintey properly exercised the duties of her office in deciding to speak to Ms Krout about her outfit

The Arbitrator addressed some of the comments Ms McGintey made to Ms Krout. He ruled that comments about the size of her breasts and the need to bring less attention to them were inappropriate. He stated that the size of Ms Krout’s breasts should have been irrelevant to the issue of whether Ms Krout was displaying a revealing neckline or was dressed inap- propriately. He ruled that the comments constituted harassment of Ms Krout.

The Arbitrator ruled that there was insufficient evidence to conclude that speaking the Ms Krout was discriminatory on the basis that no others were spoken to.