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Tag women

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.

Dylan Hill
September 1, 2008

'Pattern of Abuse'

Termination and Appeal in a Care Home

Summary

Gina worked as a Nurses Aide in a Care Home for 14 years. She had a prior discipline record for abusive and confrontational conduct toward co-workers. Gina was dis- charged for harassing and intimidating staff members following the latest com- plaint.

The Details

Gina was, by all accounts, an excellent service provider. She had a strong commitment to the residents and an excellent work ethic. Some of her co-workers said her high standards of care may have created conflict with other staff members on occasion.

A year ago, Gina was informally coached, received a reprimand, a writ- ten reprimand and a five day suspension over the course of 4 months. The disci- pline resulted from abusive and confron- tational conduct toward co-workers.

Gina’s father became a resident of the facility that year and the Union ob- served that she appeared to be under substantial stress during that period of time.

The matter that gave rise to the termination was a complaint by Sue, a Nurses Aide. Sue wrote a letter to management alleging a pattern of abu- sive treatment by Gina. Sue said she had raised her concerns informally with her supervisors on a number of occa- sions prior to making her formal com- plaint. Sue speculated, from the timing of the treatment, that it related to the fact that she had reported a staff mem- ber to management for abusing a pa- tient (who was terminated).

After receiving the complaint, the Manager, Paul, suspended Gina pend- ing an investigation. Paul interviewed Sue and kept notes of their meeting. The remedy that Sue wanted from the investigation was that Gina, “quit call- ing me names and bullying me and swearing and using foul language.” Sue identified others that had issues with Gina’s behaviour. Paul interviewed

Sheri who confirmed that she heard Gina call Sue a b***h. Sheri also con- firmed that Gina’s behaviour made people scared of her. Paul received another complaint about Gina before he was able to talk to her about the complaints. Kathy complained of abu- sive conduct directed towards her shortly after she had reported a staff member for patient abuse. Kathy told Paul to talk to Helen whom she said could confirm the conduct – which he did. Neither Kathy nor Helen re- ported the incident at the time as Kathy said she was scared of Gina and Helen said she worked extensively with Gina and noted that she was very good with residents but had an intimidating atti- tude with staff. Paul also received a complaint from Lisa who described Gina as a verbally abusive bully.

Before Paul’s interview with Gina, he received a hand delivered letter from her which apologized for her conduct and indicated she would do what was necessary to get her job back including, “a 100% turnaround apologizing ver- bally or written to each and every person I have hurt even those who have hurt me.” Paul was sufficiently impressed with the letter that he had discussions with upper management about the possibility of a ‘last chance agreement’ with Gina. Ultimately nothing came out of those discussions as both management and Gina did not wish to proceed.

Gina denied the allegations and said that people were “saying things about me that I know are not true but I don’t have any proof to support my side of the story.”

As a result of information gathered Paul interviewed Ashley who described Gina as rude and demeaning to her. Ashley said she tried to avoid confronta- tions with Gina in the hopes she would be left alone. Ashley also said Gina had called her at home on two occasions and described the calls as abusive and said they had frightened her. Part of one call was witnessed by her husband. The gist of the call was Gina complain- ing about her interview with Paul.

Gina was interviewed again and asked about the calls. She denied making one of them and said the other one was a joke. She said Ashley had no rea- son to fear her.

The Conclusion

As a result of the information gathered, the Employer decided to terminate Gina with cause. The conclusion was that Gina was harassing and intimidating staff members and they had no confidence she would change. It was noted that 17 staff members would not work with Gina and declined or switched shifts if they had to work with her, which created operational difficulties.

Appeal

The Union pointed to a number of discrepancies and weaknesses in the Employer’s evidence which it submitted made that evidence unreli-

able. Some of the interview notes were typed and some were not. Some were signed and some were not. The Union indicated Ashley had signed a letter of support for Gina and as such her evi- dence must be viewed with suspicion. The Union argued that the Employer’s Standards of Conduct did not set out any means to deal with harassment. The Union argued that the people who complained about Gina were not long serving employees and presumed that long term employees did not have a problem with Gina. The Union argued there was a lack of detail in the allega- tions against Gina and as such they were near impossible to reply to. They argued that a number of witnesses were not called to give evidence during the investigation and should have been. The Union argued that as the calls to Ashley occurred outside the workplace, they should not be considered in the investigation or give rise to discipline.

Decision

The arbitration panel concluded the discipline was warranted and upheld the Employer’s position. The panel concluded that it was not necessary for the employer to interview every person who might have relevant information but rather its obligation was to call enough evidence to satisfy the burden upon it. They were satisfied the Employer did so. Direct evidence provided by the witnesses at the arbitration confirmed the evidence they provided the Employer during the investigation. The panel concluded that the Union could have called witnesses to support its presumption that long standing em- ployees did not have a problem with Gina but did not do so.

The panel concluded that the Employer’s Standards of Conduct (which had been crafted with the aid of the Union) prohibited harassment inside

and outside of the workplace and so ruled that the calls to Ashley were prop- erly considered in the investigation. They also noted “This type of intimida- tion cannot be tolerated as it could have the effect of discouraging reporting of inappropriate behaviour.”

In assessing Gina’s evidence (denial of allegations for the most part) the panel concluded that her evidence was “not in harmony with the preponder- ance of the probabilities which a practi- cal and informed person would readily recognize as reasonable in the place and in those conditions”. Further they found that the written apology Gina provided to Paul conflicted with the denial of behaviour she tendered at the hearing.

The panel concluded the witnesses described a pattern of abusive conduct which was not dissimilar from conduct which had resulted in previous discipline. They concluded it was therefore not out of character for Gina and arose out of being reported to management for her conduct. The panel noted that Gina had been disciplined on 3 prior occasions but had not been convinced to change her conduct in the workplace.

Finally, the panel concluded that although Gina was an employee with 14 years of service, who had excellent skills in the care of residents, it did not mitigate against the “continuing pattern of abuse and harassment of her colleagues in a setting requiring teamwork…” They concluded there was no remorse, or acknowledgment of wrongdoing on Gina’s part and they were doubtful of her candor at the hearing and as such they saw no basis upon which they could reinstate Gina to the workplace.