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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, 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
June 1, 2011

Defining The Spirit of The Code

HOW ONE ARBITRATOR TURNED TO THE SPIRIT OF THE WORD “COURSE” IN THE HUMAN RIGHTS CODE

The employer makes concrete products in Ontario for use in construction. Mr Rossi is of Italian background and has lived in Canada since 1973. He has worked for the Employer for over 20 years and was required to prepare the appropriate concrete mix for the product being made.

The employer’s production manager is Mr Williams. He has worked for the Employer for over 18 years and has been in his current position for 10 of those years.

Mr Rossi’s work location is noisy and is in a different building from Mr Williams. The orders for the concrete are provided to Mr Rossi over a two way radio system. In addition to Mr Rossi and Mr Williams, two supervisors, and three other employees also have radios. Comments made over the two way radio may be heard by any of the above, or by anyone near a radio.

Mr Williams tried to order concrete from Mr Rossi, however there were communication difficulties. Mr Williams called back to check on his order and found that no order had been placed. There was some dispute as to the origin of the mistake. In the course of further discussion, Mr Williams yelled at Mr Rossi over the radio. He yelled: “You f***ing immigrant, you want me to come up there and teach you how to speak English?”

Mr Rossi was very upset by this comment and he initially wanted to confront Mr Williams, but he was concerned he might do something inappropriate and instead remained at work. He was concerned that he would not be able to pursue a complaint unless others had heard the comment as well. One of his coworkers advised Mr Rossi that he had heard the comment as well. Mr Rossi asked him if he would support a complaint and the coworker suggested that he seek an apology from Mr Williams first.

Mr Rossi spoke to a Union representative (Mr White) and told him of the situation. Mr White looked into the matter and heard of others who had overheard or who knew about the comment. Mr White mentioned the comment to Mr Williams one day in passing and Mr Williams assured him that he would apologize to Mr Rossi. Mr Williams failed to apologize in spite of several reminders by Mr White so the Union filed a grievance on behalf of Mr Rossi.

No dispute

Before the grievance was filed there was a meeting with all involved. The meeting took place after Mr White advised Mr Williams that Mr Rossi intended to file a human rights complaint. Mr Williams asserted that the comment was not intended to offend, said that he had just been kidding and apologized to Mr Rossi. He also offered to put his apology in writing.

Mr Rossi indicated an apology would not be sufficient and he further advised that he wanted a promise that the “white hats” would leave him alone. By this comment Mr Rossi was indicating that he wanted to be free from supervision at work. Mr Williams responded he could not make such a promise and the meeting ended.

Union

The Union sought the following remedies: a written apology, a general order that the Employer not harass, abuse, threaten, yell at, demean, insult or otherwise belittle and abuse Mr Rossi, anger management for Mr Williams, a one week unpaid suspension and $5,000 in damages for Mr Rossi.

Employer

The Employer noted that there was no violation of the collective agreement and the violation could only be of the Human Rights Code. The Employer said there was no discrimination under Section 5(1) and that there was at most a single isolated incident. The Employer submitted that one comment does not amount to harassment under Section 5(2).

Conclusions

The Arbitrator (Mr Hall) concluded that Mr Williams did yell at Mr Rossi, that the comment was upsetting to Mr Rossi, and that the comment was heard by others in the workplace. Mr Hall accepted that Mr Williams’s apology at the meeting was a sincere apology and that his offer of a written apology was also sincere.

Mr Hall concluded there was no evidence of discrimination in respect to Mr Rossi’s employment in the sense that his job, pay, hours of work, vacation, benefits, etc., were all unaffected. He concluded that there was no violation of Section 5(1).

Mr Hall stated he had more difficulty with the issue of harassment under Section 5(2). There are several aspects of that definition and Mr Hall looked at them. Harassment requires that the comment is “known orought reasonably to be known to be unwelcome.” In this case Mr Hall had no trouble in finding that Mr Williams’s comment was such. Mr Hall stated he could not think anyone in a position such as Mr Rossi would welcome such a comment and he did not think Mr Williams would think such a comment would be welcome.

But the Employer said it was a one time comment and because the definition requires a “course” of comments, this single comment cannot amount to harassment.

Mr Hall wrote that as a general point, each word in a statute must be given meaning. However, the use of the word “course” to describe a comment or conduct is uncommon. Mr Hall accepted that the word could have the meaning urged by the Employer, but he did not think that was the legislators’ intention.

Mr Hall stated, “While I accept that often the vexatious comment or conduct will need to be repeated before it is harassment, and that repeated comments or conduct could be said to be a “course” of comments or conduct, I have great difficulty in thinking of any reason why the legislators would have intended to require that a comment such as this, which so obviously referred to the grievor’s ancestry, place of origin and ethnic origin, and which was vexatious and unwelcome, would have to be repeated to amount to harassment under the Code. Given the purposes of the Code, I can think of no reason why the legislators would have intended that in employment every employee would be allowed to make one vexatious comment of a racist or ethnic nature to every fellow employee, and only after the second or third such unwelcome and vexatious comment, would it be considered improper.”

Mr Hall summarized that he believed that the legislators intended that a single comment could be harassment.

Mr Hall declared the Mr Williams’s comment was harassment and a violation of the Human Rights Code.

Remedy

Mr Hall directed Mr Williams to apologize to Mr Rossi in writing and provide a copy to the Union. He found there to be no need for a general order that the Employer not “harass, abuse, etc.” Mr Rossi. Mr Hall noted that Mr Rossi and Mr Williams had worked together for over 18 years and that Mr Rossi worked under Mr Williams’s supervision for over 10 years with no prior incidents. He stated, “One unacceptable comment should not be used to re-write their entire working relationship.”

Mr Hall did not find an award of damages appropriate in this case as it was not a monetary dispute. He was also not persuaded of the need for Mr Williams to be suspended, nor for him to attend an anger management course.