Tag harassment

Tag harassment

Dylan Hill
December 1, 2012

Split Decision

featured image

How a case about age related comments split the Arbitration Panel

The Arbitration relates to a complaint by the Union on behalf of Mr Glen. It is alleged that the CEO (Mr Ray) of the Employer violated the Employer’s harassment policy by yelling at and verbally abusing a long-time employee. The allegation is that Mr Ray called Mr Glen a “dog f**ker” and said “why don’t you older employees f**k off”. Mr Glen became emotionally distraught, broke down and cried over the incident.

Mr Ray denies the specific allegation but does admit that the F-word was used in the exchange but not attributable to any person.

The incident in question stemmed from a manufacturing concern. Mr John, son of Mr Ray was the general manager of Sales and Marketing and assigned Mr Glen to produce a piece of equipment for a customer who had not been satisfied in the past. The customer was giving the Company a second chance. Mr John told Mr Glen that the equipment should be perfect and said that it would be gone through with a “fine tooth comb” before it left the plant. Mr John said that he would personally inspect the equipment.

The work was done and presented to Mr John for approval. However, Mr John completely rejected it. Mr John testified that the work was “unacceptable”, the paint job was “horrific” and he was embarrassed to think that Mr Glen would think this was acceptable work, especially in the circumstances. Mr John’s rejection took part near the end of the day. Mr Glen’s work had been rejected and he was faced with having to completely re-do the work. Mr Glen was frustrated and waved his arms in the air, threw some tools down and said he didn’t care and was going to go home to get drunk and forget about it.

Mr John told his father Mr Ray about the incident and Mr Glen’s comments. The equipment was re-done and there was some discussion during the inspection. Mr Ray joined the discussion and is said to have made the comments regarding older workers as well as saying that Mr Glen “did not give a f**ck anymore” and that Mr Glen “got paid for every f**king hour” he worked.

Nothing Done

Mr Kan was the production supervisor and Mr Glen’s direct manager. Mr Glen reported the incident the same day and was so distraught that he broke down and cried. Mr Kan told Mr Glen that they would talk about it on Monday.

Mr Glen saw Mr Kan on Monday but Mr Kan appeared to not want to do anything about the incident. Mr Kan never did get back to Mr Glen. There was no evidence that Mr Kan pursued the matter or that the Workplace Harassment Review Board, referred to in the Workplace Harassment Policy, became involved.

Denial

Mr Ray testified that he did have a discussion with Mr Glen about the equipment and that the conversation got heated. Mr Ray stated that Mr Glen became defensive right away and refused to listen to him. He stated that any comments he made about Mr Glen drinking were in relation to Mr Glen saying that he was going to go home and get drunk. Mr Ray denied saying that Mr Glen was a “dog f**ker” and volunteered that he had never used that expression in his life. Mr Ray denied the comment “why don’t you older employees f**k off” and said that this would not be the Company’s objective. Mr Ray did not think he called Mr Glen a name and, in his view, did not demean him.

In cross examination Mr Ray tempered his denial of ever using the expression “dog f**ker” by saying he “didn’t remember it”, “didn’t think so”, and “would not have used the word”. Counsel for the Union put to Mr Ray the circumstances of a prior meeting where Mr Ray used the expression. Mr Ray replied, “I don’t recall”

The Arbitration panel observed that Mr Ray did not take lightly to the questioning and at times became very belligerent to counsel for the Union. At one point Mr Ray lost his temper and blew up.

Company Response

The Company did not attempt to resolve the situation with Mr Glen, nor did they conduct an investigation into the incident. It did not appear that there was any real interest in carrying out any investigation and addressing the impact of the incident on Mr Glen. The focus was on the equipment instead.

Mr Ray first heard of the harassment complaint when he received the grievance with the memo attached. He immediately attempted to contact Mr Glen to apologize and did provide an apology followed by a letter. Mr Ray sent another letter responding to the grievance shortly thereafter. In that letter he denied having made the comments in question.

Mr Glen testified that he did not fell Mr Ray’s apology was sincere.

The Finding

The Arbitration Panel considered the Company Policy on Harassment and Discrimination, the Collective Agreement with the Employees, the grievance, and the Occupational Health and Safety Act (OHSA). The Panel considered their authority and jurisdiction in the matter and determined that they did have the jurisdiction.

The Panel moved to the question of the specific behaviour and considered whether it was harassment. The Panel concluded that for the most part Mr Glen’s recollection of what occurred during the incident “is better and more in line with the facts than…” Mr Ray’s recollection. The Panel found as a fact that during the exchange Mr Ray called Mr Glen a “dog f**ker” and made the statement “why don’t you older employees f**k off”.

The Panel were of the view that it was also significant that the Company did not pursue the issue when brought to the attention of Mr Kan and that nothing further was done until the grievance was filed.

The Panel concluded that the comments did constitute harassment according to the OHSA policy. The Panel further concluded that the comments were a breach of the Employer’s harassment policy.

Split

The majority ruled that harassment had occurred and the grievance was sustained.

The minority (Employer’s Nominee) disagreed with a number of the conclusions reached by the majority. The minority expressed that there was no breach to the OHSA because there was no evidence to satisfy the part of the Act that requires the conduct to constitute a threat to the Health and Safety of the Grievor.  The minority disagreed as to whether the conduct amounted to harassment. He noted that harassment requires an objective standard rather than a subjective one and cited Arbitrator Luborsky in Re Cara Operations Ltd. and Teamsters Chemical, Energy and Allied Workers’ Union, Local 647, [2005] 141 L.A.C. (4th) 266 at 274. The minority stated that “Although the Grievor may have been personally offended by statements made…that is not the test to be applied. Applying an objective standard, the evidence does not satisfy me that there was any harassment.”

What do you think? Would you side with the Majority or the Minority? Tell us on Twitter @HillAdvisory

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.