Tag hill advisory

Tag hill advisory

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.

Dylan Hill
December 1, 2010

On A Frolic – Rogue Supervisor

How a lack of Management training can cost you

Mr Hornsby was employed as an Operator at a City yard. He was discharged from the City by way of letter dated December 24th which referred to ‘inappropriate behavior in the workplace’. The ‘inappropriate behavior’ related primarily to a number of statements made by Mr Hornsby to visible minority employees. The Union submitted a grievance which alleged that Mr Hornsby had been unjustly discharged.

Counsel for the Union acknowledged that Mr Hornsby had used inappropriate language in the workplace but submitted it had been known to management when it occurred. He contended that the City should have provided Mr Hornsby with an opportunity to correct his behaviour by advising him that his comments were inappropriate and that if they continued his employment would be in jeopardy.

Mr Jack was a visible minority employee at the yard and he described himself as being from Jamaica. Mr Jack testified that Mr Hornsby used highly inappropriate language towards him and made him the butt of jokes.

Mr Jack related an incident involving a toy gorilla. Mr Jack said he went to relieve Mr Hornsby and saw a toy gorilla hanging in the booth. Mr Hornsby said he had acquired the toy for his cat. Mr Jack was so upset, he threw the gorilla in to the compactor. Mr Jack said Mr Hornsby made a comment that Mr Jack had thrown it out because he did not like it as it reminded him of himself. Mr Hornsby denied making the statement. Mr Hornsby was heard making various statements about gorillas, monkeys and grease monkeys in the workplace and related the comments to Mr Jack.

Mr Hornsby also changed some of the terms in the workplace to have racist meanings. The term ‘back blading’ was altered to ‘black blading’, the instruction to use a back hoe was modified to ‘hoe time’ or calling Mr Jack ‘hoe boy.’

Mr Jack told Mr Hornsby to stop calling him these names and using the references. He complained to a variety of supervisors. He said Mr Hornsby’s behavior would improve for a bit, then worsen again.

Mr Hornsby referred to a Caribana festival and proposed making up shirts that referred to ‘colored kids’ and also referred to the festival being perfect for white people to go recover the goods black people had stolen from them.

Mr Hornsby referred to gunplay in the lunchroom and said, “Let all the spooks shoot each other.” He also accused an employee who was a visible minority of calling another employee ‘the n word.’ He referred to Mr Jack as “a shady character” and “a black beauty”. Mr Hornsby referred to a road called “Whites road” and indicated black people could not cross it.

Several employees complained to various levels of management without avail. They were simply asked if they wanted to report it. The employees told management they simply wanted the behavior to stop.

Employees had told Mr Hornsby that his comments needed to stop. Witnesses to the behavior made comments about it with supervisors present. Nothing was done because nobody expressed the desire to file a formal written complaint.

City’s position

The City contended that Mr Hornsby had engaged in calculated harassment and discrimination against Mr Jack and other employees. He contended that management had not condoned racial name calling in the workplace. He argued that if a supervisor had failed to do anything about such conduct this did not mean the City had condoned it but rather that the supervisor had been on “a frolic of his own” or was acting in a “rogue capacity”.

He argued that the Union should not be able to hide behind a claim of condonation since a Union steward had known about the name calling and had not taken it up with the Union hierarchy or with management.

He said he was pleading to have a 27 year employee who was 56 when discharged be given a second chance. He submitted that the principles advanced by the City could be upheld short of discharge.

Union position

Union counsel contended that Mr Hornsby was not the only one who had failed to meet the standards set out in the human rights policy. He argued that employees, front line supervisors and managers failed to meet those standards.

He submitted that others in the work force had used expressions of a racial nature, including Mr Hornsby. He said that while condonation is not a defense it can be taken into account when assessing the proper penalty.

He reviewed the occasions when employees had advised supervisors of what had occurred and in response the supervisors had done nothing other than ask if they wanted to file a complaint. He argued that this had not been in accordance with the City’s policy and that there had been an onus on management to do something about the situation. He submitted that the supervisors had never told Mr Hornsby that his conduct was inappropriate.

He contended that the City had failed to put Mr Hornsby on notice that due to his conduct his continued employment was in jeopardy and allow him the opportunity to cease and desist from such conduct.

Conclusion

The arbitrator did not accept the City’s suggestion that it can escape responsibility for the lack of management action when employees complained by saying they were ‘on a frolic’ of their own or were rogue supervisors. He found that the evidence suggests that the supervisors understood that they should only address an employee’s complaint about another employee if they were willing to put it in writing. He concluded, “While such an approach has now generally been discredited with respect to issues involving racial and sexual harassment it was the approach utilized…”

The arbitrator concluded that some evidence of other employees using racist language in the workplace existed and that all such occasions would have been liable to some sort of discipline. He stated,“The evidence, however, indicates that most of the racial terms in the workplace were used by the griever. His conduct differed in nature and degree from that of the other employees.

He concluded that management had not lived up to it’s responsibility of taking appropriate action on becoming aware of the situation. He stated, “Not withstanding this, most of the offensive language used by the griever would reasonably have been known by him to be unacceptable and he did not change his approach after…” Mr Jack complained to him about the language.

Finally, the Arbitrator concluded, “…that the City had reasonable cause to discharge the griever and I am not prepared to substitute some lesser penalty.”

Dylan Hill
September 1, 2010

'A Downward Spiral'

We can’t make it up!

Mr Rogers was a Lawyer by training and the Director of Labour Relations for a City. Ms Ray was the Chief of Staff for the City. Mr Rogers and Ms Ray had a romantic relationship that lasted 2 years. Mr Rogers’ inability to accept the end of the relationship began his downward spiral.

After two years, Ms Ray decided to end her relationship with Mr Rogers because she could not see a future. Mr Rogers refused to accept the fact that the relationship was over and the reasons given for the breakup.

A while later, Mr Rogers and Ms Ray went to a resort for a preplanned vacation together. Ms Ray reiterated that she wished to end the relationship and eventually Mr Rogers seemed to agree.

A few days later, Mr Rogers called Ms Ray at 4:00 a.m. very emotional and inconsolable. He told her that he could not envision a life without her. She repeated that she did not love him and clearly communicated to him that the romantic relationship was over. She refused his request to reconsider her decision. She told him that they could be friends.

Shortly after, Mr Rogers visited Ms Ray’s parents’ home, uninvited. He discussed their relationship with Ms Ray’s mother and asked her to intervene. Ms Ray’s mother refused, say- ing she had no intention of interfering in her grown child’s life. Mr Rogers’ communication at the time showed clearly that he understood the relationship was over.

Mr Rogers started going to Ms Ray’s home uninvited. He knocked on her front door and when there was no answer, went through the alley and to her back door to knock.

Mr Rogers began parking his car next to Ms Ray’s in the parking lot at work, which he had never done before. He also started standing on a path outside Ms Ray’s office window and looked in at her. When Ms Ray first saw him, she waved nervously. She eventually started hiding in the corner by her computer. She saw him outside between five and 10 times.

The Spiral

Ms Ray spoke to Mr Rogers in the late summer and stated again that their romantic relationship was over. She said his behavior was unacceptable and that it was unsettling. Ms Ray thought that by the end of the meeting Mr Rogers had accepted the message and that they would not see each other even as friends.

Mr Rogers repeatedly asked Ms Ray to attend events with him and to travel with him throughout the Summer and Fall.

The wording in his emails clearly showed that he knew she might not welcome the repeated offers. Mr Rogers deliberately refused to accept that the relationship was terminated and to respect Ms Ray’s expressed wishes to be left alone.

Ms Ray’s contract was up for renewal in the Fall and Mr Rogers decided to personally handle the work even though he was in a clear conflict of interest.

Mr Rogers made an appointment with the Mayor and discussed the termination of his relationship with Ms Ray. He told the Mayor he had strong feelings for Ms Ray, was still in love, and that he could provide a good standard of living for Ms Ray. They discussed Ms Ray’s contract. Mr Rogers told the Mayor Ms Ray did not want to see him anymore and that he thought it might be due to work related pressures.

Word of the meeting got back to Ms Ray who was upset that her personal life would be discussed in this manner.

Ms Ray met with Mr Rogers in a pub- lic setting because she was growing more concerned with his behavior. She was very angry because he had spoken to her parents, and the Mayor about their relationship.

Ms Ray told Mr Rogers she was alarmed at his behavior, including that he was standing beside her office window and was parking his car near hers. Mr Rogers acknowledged that he was moving his car to serve as a reminder that he was ‘always there.’

Mr Rogers showed Ms Ray one of the cards she had given him while they were in the relationship. Ms Ray snapped it out of his hand and tore it up in little pieces saying ‘you need a visual.’

Mr Rogers said that he was looking for property and that he hoped she might think about moving in. He said that he was prepared to marry her as he had ‘put in a lot of time.’ Ms Ray said she had moved on with her life and that he was going to have to move on with his.

Mr Rogers continued his uninvited visits to Ms Ray’s house, the parking, the watching, the calls to her family, and the email invitations.

Mr Rogers told Ms Ray that he was in counseling and suggested a meeting with Ms Ray in order to gain closure. She agreed to meet in her office on those grounds. Mr Rogers arrived and told Ms Ray that there was only one ‘soul mate’ for every person and she was his. Ms Ray stopped him and asked him to leave. He apologized and asked to hold her hand, which she refused. Mr Rogers told Ms Ray he was prepared to marry her. She re- fused. He started to recite a poem to her. She ripped up the poem. She told him she was seeing Mr Zastre (a coworker).

Mr Rogers became abusive, called her a thief, a liar and a coward. She asked him to leave and he did.

Mr Rogers asked to be excluded from any meetings that involved Ms Ray. His boss said that was not possible in all circumstances and told Mr Rogers the expectation was that he would be professional in his dealings with Ms Ray.

Mr Rogers got in touch Mr Zastre’s ex-wife who was extremely upset and was planning to go to the media with information about Mr Zastre and Ms Ray. Mr Rogers provided her some more information, including a derogatory comment Ms Ray had once made regarding the Mayor.

Bottom

Mr Rogers asked to meet with the Mayor when the media situation became known. He advised that the Mayor ‘get ahead’ of the upcoming article and terminate Ms Ray. The Mayor had no intention of doing such a thing.

Finally, Mr Rogers was driving down the street where Ms Ray and Mr Zastre lived and saw Mr Zastre walking. He followed behind closely while revving his engine. Mr Zastre tried to cross the street and Mr Rogers accelerated towards him at a high rate of speed. He had to jump back to avoid injury.

Mr Rogers was criminally charged with a number of offenses, which were ultimately dropped in exchange for an apology and a peace bond. Mr Rogers later denied that he meant any of the statements made at the proceedings. Further, he said that he had not meant the apology. He was suspended pending an investigation. The investigation concluded that there had been a violation of the workplace harassment policies, an abuse of authority, a betrayal of trust, a demon- strated conflict of interest, and clear evidence of a retaliation on Ms Ray.

Mr Rogers was terminated with cause. He filed a case of wrongful dismissal.

After a thorough review of all the evidence, the Court found it was appropriate for the City to terminate Mr Rogers’s employment for cause and his claim was dismissed.