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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