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Untenable Conclusions

Internal investigations should be based on evidence or they are vulnerable to appeal

This case study was originally featured in our newsletter.

Ms Baskins worked at a factory that produced ice cream and was terminated for her actions in the workplace which included theft and dishonesty. She filed several grievances related to her dismissal and treatment in the workplace, including a claim of harassment towards her sexual orientation.

During the arbitration, the Union suggested Ms Baskins was terminated because she brought up claims of harassment in the workplace. The Employer argued Ms Baskins only brought up her claims of harassment in order to attempt to divert attention away from her actions in the workplace.

Harassment/Discrimination grievance

The gist of the grievance relates to an allegation that co-workers, including Mr Adam, subjected her to sexual harassment and discrimination based on sexual orientation. When the misconduct was eventually brought to the company’s attention, they failed to take appropriate action.

Ms Baskins testified she had been “out” in the workplace for 5 or 6 years and that her sexual orientation was common knowledge among her co-workers. She stated there were “lots” of jokes about ‘gays’ and ‘lesbians’ at work. She admitted she would sometimes participate in the jokes, provided they weren’t intended to be vindictive.

After a shut-down over Christmas, the Employer down-sized the amount of staff on the night shift and Ms Baskins testified Mr Adam made some comments, blaming her for the change and impact on the workforce. Ms Baskins stated Mr Adam began to make comments to her and do things to her to “get her goat”. Ms Baskins testified that Mr Adam made the comment, “move your a** you f***ing s**t” to her while walking behind her one day. She said she ignored him because she did not think she could accomplish anything by responding.

Ms Baskins also related a comment Mr Lee made in the cafeteria one day. Ms Baskins had told a co-worker that she did not like the chicken balls that were on the menu and she heard Mr Lee make the comment “Of course she doesn’t like balls”. She said that she told Mr Lee, “If he keeps it up there is a harassment policy here.”

Ms Baskins attempted to file a harassment complaint with the employer on a Friday and was told that she could not until Monday as the person in charge of taking complaints was gone for the day. She was, however, questioned about her absence from her work station earlier in the week and handed a reprimand regarding the issue.

Ms Baskins was able to file a complaint on Monday and an investigation occurred. In the investigative report there were conclusions that although the comments were clearly unwelcome, they did not breach the employer’s policy because Ms Baskins had not clearly told the Respondents to stop. There was a recommendation that both Ms Baskins and Mr Adam be spoken to with respect to the comments they make in the workplace, though there was no evidence that Ms Baskins had made any unwelcome comments. Finally, there was the comment, “Unfortunately it is difficult to control the behaviour of adults but we must learn to work in an environment that is respectful for both parties to work in.” Ms Baskins was not satisfied with the investigation and report and filed the grievance that led to arbitration.

Investigator Evidence

Ms Tinder testified as she was the investigator and she stated that because there were no witnesses to the s**t comment, she could not conclude that it was made. The arbitrator did not accept the position that a complaint is necessarily unsubstantiated merely because there were no third-party eye-witnesses. He stated, “Offences as serious as sexual harassment should not be treated in such dismissive fashion.” The arbitrator heard all the evidence and concluded that he could not, himself conclude that the alleged comment was made. In doing so, he considered other factors, beyond the absence of any direct witnesses. Part of that evidence was that the information given by Ms Baskins related to the incident was inconsistent in terms of content and location.

In relation to the “chicken balls” incident, Mr Lee admitted he had made the comment but said that he did not believe Ms Baskins could have heard it as she was too far away. The internal investigation made the conclusions that the comment did not offend any of the protected groupings under Human Rights, that Ms Baskins could not have heard it and that Ms Baskins had not clearly told Mr Lee that comments of that nature were unwelcome.

Under cross examination, Ms Tinder agreed that the comment was related to one of the protected groupings and that Ms Baskins had referred to the existence of the harassment policy to Mr Lee, which would be understood as being told the comment was unwelcome. Ms Tinder was asked how she could have found that Ms Baskins had not told Mr Lee the comment was unwelcome in light of this information and she said, “She didn’t directly tell him, “I don’t appreciate that comment”. Her comment did not mean stop”. Ms Tinder testified, “You need to say I don’t appreciate it and I’d like you to stop”. Ms Tinder also made comments that in her opinion, the Human Rights Code was not violated if a person did not hear a comment directed at them.

The arbitrator disagreed. He found the conclusions unreasonable and untenable. He stated, “Whether or not the grievor heard it at the time is immaterial.” He wrote, “…position that an employee may continue such statements until directly told to stop is incorrect. Taking such an absurd position only encourages harassment of those who are not strong enough to confront perpetrators. The arbitrator found that the conclusion of the report was completely inconsistent with their own policy that it will not tolerate any form of harassment.

The Arbitrator concluded that the company was in violation of the Human Rights Code.

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.

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Dylan Hill

December 1, 2013