Tag harassment

Tag harassment

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.

Dylan Hill
September 1, 2011

A Cautionary Tale

Out of office conduct and the Employer’s responsibility

This complaint and subsequent arbitration occurred in an Educational institution and in- volved a 20-day suspension for a female employee (Ms Pierce). The alleged events took place at the Christmas staff party, which is an annual event and is held offsite. Two staff members or- ganized the party.

The Employer’s position was that Ms Pierce intentionally grabbed a man, costumed as Santa Claus, by his testicles. The Union’s position was that Ms Pierce was endeavoring to carry out a joke that went awry. If she did clutch his genitalia, the Union’s position was that she did so accidentally and not deliberately.

The party itself began with pre-dinner drinks in the bar area. Dinner followed in another room of the facility. After dinner people returned to the bar area, to sit at tables and view a skit performed by faculty and staff. Socializing began during the skit and dancing and more social- izing followed.

The incident giving rise to the suspension transpired while the skit was still in progress. As noted, it involved a man costumed as Santa Claus. This man was not the person playing Santa in the skit. He was a different Santa, who was not a member of the faculty or staff.

Both Santa and Ms Pierce testified about the incident. In addition, there were a number of bystanders sitting at or near the table who viewed some or all of the incident.

Santa dons an elaborate suit and moves throughout the community. For example, he will appear at schools to greet children and at hospitals to greet patients. A large part of Santa’s activities are focused on fundraising for the purchase of gifts for needy children. He typically makes brief appearances, shaking hands and extending seasons greetings. Learning of the Christmas staff party, Santa decided to make an appearance. He arrived during the perform- ance of the skit and moved from table to table, shaking hands and extending greetings.

Assault

Eventually he reached a table near the bar where Ms Pierce and other members of her party were sitting.

Santa testified that a woman came up to him and stated, “You are not the real Santa” then lifted up his jacket and grabbed him by his private parts. He said he asked three times to be let go. Santa said that he was embarrassed and hurting, be- cause he had received “a couple of good yanks”. He was still sore one week after the incident.

Counsel for the Employer asked whether it might have been a “baseball handshake” and whether Ms Pierce’s hand might have only brushed him. A “baseball handshake” was defined as a procedure in which a person extends one’s hand to an- other person, as if to shake hands, then suddenly drops down and grasps the other person by the thigh. Santa replied “that was no brush; it was clutch and grab”.

Santa described the events to a friend who informed him he could make a com- plaint to the police. Santa did not do so, as it was his hope that the matter would sim- ply go away and be forgotten.

Witnesses

Ms Cher testified at the arbitration. She said that when Santa approached their table, Ms Pierce bent towards her and said, “I’m going to see if that’s the real Santa. I’m going to grab his balls.” Ms Cher said she told Ms Pierce not to do it. However, as Santa approached their table, Ms Cher said that Ms Pierce stood up and walked towards him then grabbed Santa. She also testified that Ms Pierce said the man was not the real Santa and returned to the table laughing.

Other witnesses testified in a similar manner.

Reported

The incident was reported to the Prin- cipal of the school. The report did not come from Santa, but from one of the staff members who had arranged the party. As an organizer, she felt she was responsible.

The principal acted on the informa- tion and requested a meeting with Ms Pierce and a Union representative. Ms Pierce was informed of the allegations and it was suggested that the matter could be dealt with by way of letter of apology. She did not respond to the allegations. Her Union representative spoke on her behalf and said that Ms Pierce sincerely regretted any embarrassment the school may have suffered and felt that the apology letter should come from the school.

The school wrote Santa a letter of apology and indicated that the matter was being followed up by the Superintendent (Mr Jilles).

Mr Jilles scheduled a meeting with Ms Pierce and the Union. The purpose of the meeting was to deliver a letter to Ms Pierce, informing her that the Employer was going to investigate the allegations.

Ms Pierce was asked about the allega- tion. She replied that she was “not guilty of that allegation”. Her representative read a written statement, which described the “baseball handshake” and indicated con- tact with Santa’s genitalia was accidental. She denied making the statements leading up to the contact and after the contact.

The investigation determined that Ms Pierce had breached the policy as the alle- gation was substantiated. A suspension of 20 days without pay was imposed.

Changing story

Ms Pierce changed her story a number of times before and during the arbitration hearing. At first the brush was accidental, then it was an accidental squeeze, then “clutched”. She admitted that she had doubts about her testimony after hearing Santa’s evidence.

Ms Pierce was pressed as to if Santa was wrong to state there were a couple of yanks and replied, “When I heard that I thought how would he come up with that. It’s possible there was a tug. There was something in my hand. It could have been genitals…”

Finding

The arbitrator found that there was ample evidence to support the conclusion that Ms Pierce did grab Santa’s genitalia. He concluded that Ms Pierce did so delib- erately based on the preponderance of the evidence.

The next question handled was if the Employer was entitled to discipline. The conduct occurred after working hours and away from the work site. In summary the questions to be answered were: did the actions of the employee injure to interests of the employer, damage the employer’s reputation, or lead to a refusal, reluctance, or inability of the other employees to work with them.

The Board of School Trustees did not formally approve the function. Nor did the Employer bear any financial costs. How- ever, the Employer had a relationship with the venue in a number of different areas. The arbitrator found that Ms Pierce’s ac- tions represented a threat to that relation- ship, though no damage was shown.

The arbitrator moved to the discipline and determined that discipline was warranted. The final question was severity. The arbitrator found that the discipline was too strong due to a variety of mitigat- ing factors and substituted a suspension on 6 days without pay.