Multiple incidents of unwanted sexual advances, making inappropriate comments on duty and undressing in plain sight of female co-workers contributed to a New Brunswick parole officer being fired for cause in 2015.
But arbitrator Robert Breen ruled against the government agency responsible, citing a persistent “barnyard” atmosphere that tacitly encouraged the worker to keep up his salacious behaviour in the Moncton probation office.
Kevin Kelly received a termination letter on Oct. 2, 2015, that read in part, “Information gathered in this investigation revealed that you did exhibit numerous offensive and unwelcome behaviours toward your co-workers found to be contrary to the New Brunswick Workplace Harassment Policy, specifically sexual harassment and creating a poisoned work environment, therefore, complaints are found to be substantiated.”
Kelly was a probation officer with three–and-half years’ experience at the time, and no previous record of discipline.
In May, he was given a suspension while an investigationtook place. It alleged that Kelly changed his clothing from workplace to gym attire, stripping down to his underwear in view of female probation officers multiple times. It was also alleged Kelly grabbed the rear ends of two female officers more than once at off-site parties.
Finally, Kelly was accused of making inappropriate sexualized comments to students who were at the office for “work term placement.”
He was also accused of constantly speaking to various co-workers in overly sexualized language and proposing to perform sex acts with female colleagues.
All of the incidents were part of a “pattern of behaviour” that regional director Rock LeBlanc observed during his investigation.
On various occasions outside and in the workplace, workers engaged in sexual behaviour and exchanged sexual banter. The investigation found that talking about penis size and demonstrations of “humping” were rampant among management and workers.
“Further, the alleged ‘humping’, it contends, was ‘a practice’ in the workplace. Why was Kelly ‘singled out?’ it asks,” said Breen.
The Canadian Union of Public Employees (CUPE) argued on his behalf that the employer didn’t propose to talk to Kelly about his behaviour or offer training to alleviate the issue, instead it focused only on justifying termination.
Management could have better handled the allegations from the outset. “I also conclude the failure of this employer to offer training or education appropriate to overcome the normative culture of the Moncton workplace, consistent with its policy, to be taken as a mitigating factor,” said Breen.
Kelly’s actions “demonstrate a range of ‘unwelcome conduct’ constituting, I conclude, ‘serious’ sexual harassment,” he said . But “the evidence led as to the Moncton office ‘workplace culture,’ including testimony that ‘humping’ behaviours and sexual banter, to which Kelly readily admits, is not ‘his alone.’”
Further complicating the case were Kelly’s ongoing depression and anxiety, which made some co-workers uncomfortable. No other workers were disciplined for similar behaviour, said the union. “Kelly, the evidence confirms, was considered ‘different’ by other employees. Did Kelly’s medical condition play a part in this termination?”
Breen ordered Kelly reinstated but his five month suspension was upheld. Wages lost during the time outside the suspension are to be repaid. Kelly was ordered to participate in workplace sensitivity training and personal counselling to address his depression, while the employer endeavoured to find him alternate employment at a different office location.
References: New Brunswick Department of Justice and Public Safety and the Canadian Union of Public Employees, Local 1418. Robert Breen — Arbitrator. Maya Hamou for the employer. Monique DesRoches for the grievor. July 28, 2016.
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