How some dynamics are common and how we can avoid the same mistakes
Mr Gene drove a delivery truck for a parcel service and was terminated for time theft. Upon his termination, Mr Gene filed a number of allegations with the employer, all relating to actions he deemed to be harassment and discrimination on the basis of his religion. Mr Gene filed a grievance related to his termination and what he said was a failure on management to deal with the harassment and discrimination he was facing.
The behaviour alleged included his vehicle being tampered with (grease on his steering wheel), his keys being taken, anti-Semitic graffiti being written on his vehicle, and anti-Semitic jokes and comments being made to him. The nature of the allegations and their scope expanded between the time he informed the company of his complaint and the hearing date.
Mr Gene was called into a meeting to discuss certain gaps of time in his work day. Mr Gene was unable to explain, to the satisfaction of management, a substantial period of time in which no work appeared to have been performed. He was terminated.
Following the meeting Mr Gene told Mr Goodfellow that he felt he was being discriminated against and treated unfairly. According to Mr Goodfellow, Mr Gene was rambling and could not be specific about what had occurred. Mr Goodfellow considered this a very serious issue and asked Mr Gene to put the information in writing. Mr Gene provided Mr Goodfellow with a one-page letter briefly outlining his allegations. This letter bore little resemblance to the grievance filed two months later.
The Union immediately grieved the termination and the parties resolved the matter with Mr Gene accepting a five-day suspension. Mr Gene remained off work on “stress leave” and Mr Goodfellow began an investigation into his complaint.
Mr Gene testified that he found words such as “lazy Jew” and “go back home” written in the dust on his work vehicle “a couple” of times. Mr Gene said he reported the occurrences to his supervisor, who failed to take any action.The company did not call the supervisor to give evidence at the grievance hearing.
Mr Gene testified that there were a number of jokes made by co-workers about the Holocaust and that he reported those jokes to Human Resources. Mr Gene said that he had not provided the names of those responsible because he still had to work with them. Human Resources pledged to place someone “undercover” to investigate. Mr Gene never heard back. The company did not call the Human Resources member to give evidence at the grievance hearing.
There were a number of other similar incidents, where issues were vaguely reported, no action was taken and the company did not call the witnesses to give evidence.
The Company Position
The company maintained that the complaints were without merit and in at least one case malicious. It submitted that they were nothing more than the product of an effort by Mr Gene to initially prevent, and later to overcome, his discharge. The company submitted that they had investigated the complaints upon becoming aware and had dealt with them appropriately. The company submitted that they received notification of the complaints, most of which were historical after the fact. The company argued that Mr Gene’s evidence should be seen as self-serving or fabricated.
The Company’s response to their investigation
The company resolved to increase training on the Anti-Harassment policy at a number of levels. Further, in the findings the company stipulated that Mr Gene should bring any other incidents immediately to management’s attention for action.
The arbitrator found that some of the allegations Mr Gene presented were true and that he was the victim of at least some religious-based harassment at the hands of his co-workers, though not at all to the extent that he alleged. The arbitrator did not agree that all of Mr Gene’s evidence be set aside based on the company’s arguments and he examined each one. Although the arbitrator found Mr Gene’s evidence to be often vague, frequently imprecise, and sometimes shifting he accepted certain aspects of Mr Gene’s information. The arbitrator described Mr Goodfellow as dedicated and committed in preparing the report for the company on the allegations but faulted the company in not calling the witnesses that Mr Goodfellow interviewed to give evidence at the arbitration.
The arbitrator spent a great deal of space in the award weighing the testimony of Mr Gene. He described it as “all over the map”, “very confusing to deal with” and “vague”. An example given was that Mr Gene seemed content to offer evidence that the company “gave him a hard time” as fact, without detail and could not or would not provide details when questioned.
The arbitrator found that the evidence of the writings in the dust and the “jokes” was uncontradicted and that further, it was uncontradicted that Mr Gene brought these issues to management and that nothing was done. The fact that none of the witnesses were called to give evidence weighed heavily. The arbitrator found that the evidence submitted by Mr Goodfellow in his report, of his conversations with those people, was of no assistance. He concluded, “It is hearsay evidence and is insufficient to overcome the effects of the grievor’s direct testimony.
The arbitrator also found that the company’s reliance on the fact that Mr Gene chose not to name the people making jokes did not assist the company. He ruled, “It was incumbent on the Company to assure the grievor that there was absolutely no reason for any such concern and that all matters would be investigated and dealt with thoroughly, appropriately, and with no fear of reprisal.”
The arbitrator made some comments about the posting of company policies on Anti-Harassment and the training. He stated, “…the Company also cannot take comfort in the written policies against harassment, and in favour of diversity, that are posted in the workplace…and about which employees are informed at the point of hiring. Policies exist to be enforced and if they are not – or if the enforcement is limp or tepid or goes unrecorded – then such policies are essentially valueless.”
The arbitrator declared that the company breached the Human Rights Act and the collective agreement by failing to provide the grievor with a discrimination and harassment free workplace with respect to certain aspects of the complaint, but not all.
Two points of this case struck me; first, the lack of preparation by the company, and the error in strategy at the grievance hearings, in not calling crucial witnesses to their case. This led to uncontradicted evidence and ultimately contributed to the unfavourable finding. Second, this is another example of the huge burden employer’s have, to ensure the workplace is free from harassment and discrimination. It is not good enough to have a policy and tell people about it; we must vigorously enforce the standards set.
Yet again, we see the dynamic of an employee reporting an incident, being reluctant to provide all the details (present the names of those responsible) and the company’s attempt to rely on that as creating a condition where they could not take action. Clearly the arbitrator disagreed, and that contributed to the unfavourable finding in this case.
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