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.
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.
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.
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 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.
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,  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.”
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