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Dylan Hill
December 1, 2012

Split Decision

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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
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.