Tag harassment

Tag harassment

'Facebook Message = Firing'

How romantic interest, Facebook and recruitment collide.

Mr Jobs was discharged in September 2009 for engaging in instances of personal harassment, misrepresentation and intimations of unauthorized and improper interference with the Employer’s system with respect to a summer student of an affiliated Employer.

Mr Jobs was the Web Administrator for five years. His duties and responsibilities included designing, building, and maintaining the Employer’s Internet and Intranet sites. He also had some responsibilities in Corporate communications and Media relations.

Ms Lea was a 24 year old summer student working for an affiliated Company. She was in a Technical Program at a local College and hoped to graduate in a year and seek employment with the Employer. As part of her summer duties,Ms Lea was required to facilitate in the planning for the annual golf tournament and she sought Mr Jobs’ assistance in placing registration information on the Employer’s Intranet.

Mr Jobs agreed to help and they spoke on the phone. During this call, Mr Jobs mentioned his hometown and Ms Lea just happened to be from a town close by. They spent sometime talking about the area and their plans for the upcoming long weekend. Later that night Ms Lea ‘friend requested’ Mr Jobs on Facebook and he accepted.

The two spoke by telephone a number of times over the next few weeks about the tournament. They also continued to discuss personal matters. During one of the calls, Mr Jobs asked for Ms Lea’s home phone number and she gave it to him. They talked occasionally over the phone at night and chatted on Facebook, but as friends and not in a romantic way.

Towards the end of August the two of them discussed meeting in person for the first time. They agreed to go hiking and out to dinner in celebration of Ms Lea’s birthday two weeks later. By that time Ms Lea had finished her summer job and returned to school, which involved moving. She gave Mr Jobs her new phone number.

Girlfriend Comment

A couple of days before their scheduled plans, they spoke on the phone to finalized them.Mr Jobs told Ms Lea that he did not want to introduce her to his friend Mr Ballmer because he always “hit on his girlfriends.”

Ms Lea found the comment disturbing and became concerned about Mr Jobs’ intentions in meeting her. She had not yet met him in person and he was now referring to her as his ‘girlfriend.’ She had never considered him to be more than a platonic friend and was not interested in any relationship beyond that.

Stood Up

Ms Lea said nothing of her concerns during the phone call but decided not to meet Mr Jobs as planned. She sent Mr Jobs a Facebook message advising him that he may have gotten the wrong impression and that she only meant for the two of them to be friends.

Mr Jobs did not check his Facebook account for a couple of days so did not receive Ms Lea’s message. Unaware that Ms Lea had concerns or that she had decided not to meet as planned, he phoned her on his way home from work. She did not answer his call so he left a message. He did not hear back so he proceeded to call a couple of more times over the next few hours. Finally, he decided that he had been ‘stood up’ so he stopped calling. He was angry and hurt.

Reaction

A few days after the planned meeting, he checked his Facebook page and discovered then the message Ms Lea had left for him days earlier. He replied: “What do I care about someone like that? Obviously your MO is to lead on as many guys here as possible to try and secure yourself a job. Good luck with that…gee maybe you should have thought about how much power and influence I have over the HR dept and all of their computer systems before you treated me like shit and jeopardized all of your career aspirations. Try to figure THAT out yourself. You’ll have plenty of time to reflect on it when you’re working at Tim Horton’s for the rest of your life. TTYN [Talk To You Never]”

After sending the message he disconnected the Facebook connection so they could no longer exchange messages.

Fears

Mr Jobs did not have the ability to undermine or ruin Ms Lea’s job prospects but she certainly perceived the threat as real. She perceived Mr Jobs to be in a position of power as the Web Administrator. She realized that to apply for work with the Employer would require an on-line application and she feared that Mr Jobs could filter her application to ensure she did not get a job.

Ms Lea was frightened and concerned so brought the situation to the attention of the Employer.

Investigation

Mr Jobs was advised by a manager that because of his interactions with Ms Lea, he was to leave the premises and he did so. He was not told any details of the allegations. Uncertain about why he had been removed from work and realizing that he was in some trouble, Mr Jobs phoned Ms Lea that night, both to find out what was going on and to apologize if necessary. Ms Lea said that she should not be talking to him and hung up quickly.

Later that week Mr Jobs was called to a meeting with management. He asked if he would have an opportunity to apologize to Ms Lea. He was told to have no contact with her and was given a letter terminating his employment.

Mr Jobs filed a grievance and an Arbitration ensued.

Arguments

The Employer argued that the termination was justified. They noted Mr Jobs had a position of importance and responsibility including duties involving meeting with members of the public and media. They argued Mr Jobs knew Ms Lea was a young student who was seeking a career with the Employer and she would have understood him to have a senior position of authority and responsibility. They argued that he sent her a message designed to threaten her over job prospects, intended to cause her pain and anguish and succeeded in doing so. The Employer submitted that Mr Jobs’ behaviour was disgraceful and reflected poorly on the organization.

The Union agreed the improper conduct was significant. However, they argued that there was no reason given as to why a lesser penalty was not given. They argued Mr Jobs did not have the intent or the ability to carry out his threat. They submitted that Mr Jobs was credible, candid, and remorseful, fully acknowledging his misconduct and taking full responsibility for it and his apology was sincere and complete when he was allowed to give it.He had no prior disciplinary record and the Union maintained that discharge was too severe a penalty and suspension ought to be substituted.

Decision

Should Mr Jobs be reinstated and a suspension be substituted? What was the decision? Follow us on Twitter http://twitter.com/HillAdvisory to find out!

Environment is No Defense

How swearing in the workplace is unacceptable anywhere

The Employer operates Government controlled liquor distribution. Shane is a long service employee of the Employer and had worked for them for 30 years. Londa is the Store Manager and Shane has had issues with her from the start. Caroline was hired for a short term over the holiday season.

The case concerns the dismissal of Shane for behaviour contrary to the Standards of Conduct. More specifically, it is alleged that Shane engaged in conversations with co-workers during which he made defamatory and demeaning remarks against the store manager. Shane had engaged in similar behaviour in the past and had been disciplined for it. On this occasion, Shane was fired and he filed a grievance.

The events occurred in late December. The most significant incident is alleged to have occurred on December 24th. On that day, Caroline was on till and became involved in a dis- pute with a customer. Londa came over to help and asked Caroline to step away. On her way to the back of the store, Caroline stopped to ‘vent’ with Shane. During the conversation Caroline said Shane made remarks directed at Londa as well as another employee, Edina. In particular, he called Edina a“f***ing bulldog”and Londa a“f***ing b**ch”. Customers were in the area when the comments were made.

Caroline talked to Londa about the conversation and shared the names Shane had called her. Caroline took notes of their conversation and asked Caroline to forward her an email with the information. Shane had a history of calling Londa the same name and worse names in the store.

Shane denied making any comments like the ones reported. He did admit he used the ‘F’ word and was sure he had used the terms ‘incompetent’, ‘b**ch’ and had said Londa was ‘in over her head.’ He felt Londa was a ‘b**ch’ because of the way she ‘baited’ and ‘bullied’ him.

Employer Position

The Employer argued that Shane’s conducting challenging Londa’s managerial decisions, belittling her by use of various derogatory names was tantamount to harassment. They asserted that Shane was unable or unwilling to change his behaviour and had no insight, remorse or apology. They argued the termination was justified and required to protect other employees from a poisoned work environment.

With respect to the specific allegation of Shane’s comments on December 24th, the Employer argued that evidence showed Shane had used the terms in the workplace, and that he generally used profanity without hesitation. They also referred to his admission he called Londa other names.

The Employer stated Shane’s disciplinary history supported a conclusion that discharge was an appropriate sanction. Shane had received a one-day suspension in 1993, followed by increasingly severe discipline, including a two-day suspension in July 2005 and a three-day suspension in November 2005. The discipline was for either inappropriate actions towards co-workers or management.

The Employer argued Shane’s conduct was not a momentary aberration but a continuation of his previous conduct that had attracted discipline in the past, despite clear direction from the Employer that such conduct was not acceptable.

Further, Shane’s contempt carried through to his testimony at the hearing. Rather than accept responsibility for his actions Shane said he believed that he was entitled to continue with his behaviour if he feels he has been demeaned in the workplace.

Union Position

The Union acknowledged that Shane’s conduct did give rise to just cause for some form of discipline but argued that discharge was an excessive penalty.

They pointed to the letter of termination, and the Employer’s investigation, focussed on a specific incident and no allegation against Shane regarding comments made about a co-worker.

The Union disagreed with the Employer’s characterization of Shane’s comments as disrespectful and inappropriate, since at that specific location many employees routinely used such language. They argued there was a ‘culture of swearing’ at the workplace.

The Union argued the 1993 discipline was stale,given that Shane worked for another twelve years without discipline. They also argued that the other discipline involved situations that did not include abusive conduct, but rather a dispute with another manager.

They argued that although Londa stated Shane made offensive comments in front of co-workers and customers, there was no evidence of customer complaints and no reference in the termination letter to comments having been made in front of customers.

The Union contended that Caroline – a junior, seasonal employee lied about the events.They referred to a difference in where she said the conversation occurred and inconsistencies in Londa’s notes and Caroline’s email. They also argued that although Caroline said she was shocked by Shane’s comments and wanted to get away from him, she accepted a ride home from him even though she had other options

The Union argued that the employment relationship could be restored and that Shane should be reinstated.

Decision

The arbitrator looked at the conflicting evidence from Caroline and Shane.He felt that Shane’s version of events was more credible and he based that decision on the conflict between Caroline stating she was uncomfortable around Shane, yet asking him for a ride home when there were other options that she had used before. The arbitrator also referred to the inconsistency with Londa’s notes and Caroline’s email.

The arbitrator ruled that he was unable to accept Caroline’s evidence with respect to the events of December 24th. Specifically that the evidence was not compelling to find Shane had made the com- ments in the store and in front of customers.

He turned to the other aspects of Shane’s conduct, some of which were undisputed, that justified a disciplinary response. Shane had admitted to calling Londa a ‘b**ch’ and making derogatory remarks about her managerial skills. These comments were made in the workplace.

The arbitrator was aware that other employees made similar comments, and addressed the Union’s contention of a ‘culture of swearing.’ It was noted that many of the employee’s did use profane language. However, the arbitrator ruled that there was no doubt the Employer considered that type of behaviour to be inappropriate. He ruled that Shane’s comments would certainly be considered offensive had they been said directly to Londa and that they had clear and unequivocal meaning. He noted Shane’s comments were cutting, crude and inappropriate.

The arbitrator ruled the employment relationship was not irreparable and reinstated Shane with a 30 day suspension and two conditions.

'Fact is Stranger than Fiction'

Progress and Respect leave some behind and they sometimes own businesses

Mr Scott is an international business owner who has recently acquired a hotel in Sas- katchewan. The property was previously Certified and the Employees are covered by a Collective Agreement. Mr Scott does not cooperate with the Union and often has been heard yelling at the Union Representative and kicking him off the property.

Ms Kuric applied to work at the front desk of the Hotel. She had an interview with Mr Scott during which Mr Scott asked her questions about her nationality and asked if she was married. All through the interview, he blew cigarette smoke in her face. Ms Kuric was hired and was quickly promoted to full time, then to performing the night audit duties.

For the first portion of Ms Kuric’s employment, Mr Scott was living in another town and would call in often. He was rarely on the premises.

Throughout the course of her employment, Ms Kuric alleged that Mr Scott regularly swore at her, yelled at her, made inappropriate comments regarding her sex, touched her in an unwelcome manner, and threatened her. The events culminated in Mr Scott insisting that Ms Kuric return to work early and against Doctor’s advice after she had been assaulted at work. Ms Kuric filed a grievance and an Arbitration ensued.

Mr Scott participated initially in the Arbitration process and had representation. He was belligerent during the process and insisted that he was not going to speak to the Union Repre- sentative. In the lead up to the Arbitration, Mr Scott’s representatives suddenly withdrew and gave notice that they were no longer acting on his behalf. Multiple calls were made to Mr Scott and numerous letters were sent. The Union submitted it’s written argument and the Board ordered that any submission on behalf of the Employer needed to be received by a certain date. No submission was received. Mr Scott failed to participate further with the Arbitration process and it eventually went forward without an Employer representative at all.

Verbal Abuse

For the first while after Ms Kuric was hired, Mr Scott communicated exclusively by phone. He would call her and was de- grading and intimidating from the start. Ms Kuric described Mr Scott’s language as getting progressively worse – he started with using the f*word in almost every sentence and then moved on to more personal attacks as time went by. He would regularly call Ms Kuric ‘stupid’, ‘lazy’ and a b***h’ while accusing her of not looking after his business. Mr Scott talked to a lot of staff that same way, but Ms Kuric was the one that dealt with the majority of his calls as it was part of her job to answer the phone. Mr Scott was fluent in Portuguese and cursed at her in that language. Ms Kuric understood the language and could tell what he was saying to her.

Unwelcome Touching/ Comments

On New Years Eve, Mr Scott visited the hotel while Ms Kuric was working. He was leaving and Ms Kuric needed to lock the door behind him. She followed Mr Scott to the door and he turned around quickly, grabbed her and kissed her on the lips ‘using his tongue’. Mr Scott squeezed Ms Kuric so hard that she said she could not breathe. She finally managed to escape his grasp and his only response was to laugh, wave at her and leave.

Mr Scott began spending more time at the Hotel and was seen constantly yelling at Ms Kuric, other staff and patrons. He appeared to enjoy degrading others. Ms Kuric felt that she could not do anything right.

Onenight, Mr Scott came to the front desk while Ms Kuric was working. He had a woman on his arm and he told Ms Kuric she should join them in his suite for a ‘threesome’. He told her that once she had a man like him, she would never sleep with another man. He proceeded to invite several other employees to join them in his suite.

Assault

Mr Scott had a tendency to hire employees that were down on their luck,let them live in the Hotel but not provide them with any pay. The Hotel had previously had a normal amount of turnover but under Mr Scott’s management had nearly 100% turnover.

One night, Ms Kuric was working the front and a couple of customers wanted to cash out small VLT tickets. As she was getting the change, the men assaulted and robbed her. The police came and told her she could call an ambulance and go to the hospital. Mr Scott came to the scene and began feeling Ms Kuric all over and saying that there was nothing wrong with her. During the robbery, a quarter was left on the counter and Mr Scott became upset about that. He did not want Ms Kuric to go to the Hospital.

The ambulance came and Ms Kuric went with them against Mr Scott’s wishes. Mr Scott was upset as he would have to look after the desk and called Ms Kurica ‘f***g b***ch’.

Ms Kuric was treated for whiplash injuries from being knocked around. She gave the Employer a note advising that she could not work for two weeks.

Mr Scott called Ms Kuric the next day and asked her to work. Ms Kuric told Mr Scott she was on WorkersCompensation and had to attend Doctor’s appointments. Mr Scott asked her to come in and said that he would pay her under the table. He said that most Doctor’s appointments take only half an hour and then told her to come in ‘right f***ng now!’

Reaction

The Union read a letter from Mr Scott that they received in response to the grievances filed. In the letter Mr Scott said Ms Kuric was a vicious malicious liar and he threatened to sue the Union for 4.8million dollars if Ms Kuric did not withdraw the grievance. He threatened to up his suit to 10 million dollars should the matter go public.

Ms Kuric was not able to receive her record of employment from Mr Scott and Mr Scott refused to allow the Union Representative on the property to resolve the matter. Ms Kuric did not receive the proper pay and when she called to figure it out with the payroll clerk, Mr Scott inter- cepted the call and hung up on her.

Arbitration Board

The Board accepted the evidence of Ms Kuric, that in the course of her employment Mr Scott subjected her to repeated harassment which was unwelcome, humiliating, insulting and degrading. They found Mr Scott’s conduct on New Years Eve was sexual harassment and that his conduct with respect to offering a ‘three- some’ was clearly inappropriate and constituted sexual harassment. Other incidents reported by Ms Kuric clearly was verbal harassment.

The Board concluded that the actions of Mr Scott with relation to the comments made about Ms Kuric’s sex breached the Human Rights Legislation as well. Further they concluded that Mr Scott’s actions had breeched the Occupational Health and Safety Act.The grievance was allowed and penalty was to be discussed in further proceedings.