Firefighter denied threatening rape and evidence showed comments were part of joking common among firefighters
It can be difficult for women to make headway in male-dominated professions such as firefighting. Employers of such professions need to be on the alert for instances of sexual harassment and discrimination. But in the case of potentially harassing comments, sometimes the context and nature of the workplace culture can mitigate the culpability of an employee who makes such comments — but not necessarily excuse them.
A firefighter who was dismissed for inappropriate comments to a female co-worker at a party has been reinstated with a suspension and a demotion by an arbitrator.
Ryan Hamilton was a firefighter for the City of Brampton, Ont. Hired in 2001, he became an acting captain in 2009 and a full captain at Brampton’s station 206 in July 2013. His wife was also a firefighter, stationed in Toronto.
Pranks and practical jokes were frequent in the Brampton fire service, and the culture at the stations often featured what could be considered juvenile and dark humour, as well as sexist behaviour by some individuals. One example was an annual show for the fundraising firefighter calendar, where firefighters danced on stage, “dropped their pants” and judged to see who should appear in the calendar.
In September 2014, a golf tournament organized by another Brampton firefighter was held in which Hamilton participated. At one point, Hamilton’s foursome came to the tee of a hole where a female firefighter from the city’s station 209 was selling tickets. Hamilton joked with the female firefighter and one of his colleagues in the foursome, Kirk Swann, took a liking to her. Swann obtained the woman’s phone number and invited her to an after party, but she declined.
Swann texted the female firefighter the next day to apologize for being too forward and there was some joking at her station because he didn’t know she was also a Brampton firefighter.
A few months passed and a Christmas party was scheduled for Dec. 18 — the first social event for Brampton firefighters since the golf tournament. At station 209, the female firefighter acknowledged it would be the first time seeing Swann since the golf tournament and she said she would wear something conservative to avoid a similar situation arising. Some of the crew at station 209 suggested that she tell Swann that she was being transferred to station 206 — the station where Swann and Hamilton worked — as a joke to see if he “squirms.” The female firefighter agreed it would be “kind of funny.”
On Dec. 18, Hamilton arrived at the restaurant where the party was being held around 5:30 p.m. and starting drinking beer. He gave another firefighter $40 and told him to keep his glass full all night. Firefighters from station 209 arrived a little later and soon the conversation turned to the joke that the female firefighter should tell Swann she was being transferred. They all agreed they would participate in it if she went ahead with it.
Joking became inappropriate
Around 8 p.m., Hamilton had a conversation with the female firefighter. She casually mentioned that she had heard she was going to be transferred to station 206, and Hamilton reacted negatively. He said “no you are not” and said it wouldn't be a good idea. He then said if she was transferred to station 206, she would end up pregnant within the first week and wouldn’t know who the father was.
The female firefighter joked that she had “HR on speed dial,” to which Hamilton responded “did you just bust out the HR comment?” Another firefighter soon interrupted to tell Hamilton he was being inappropriate. The female firefighter then turned around to talk to others.
About one hour later, the female firefighter decided to go home. She was talking to someone else before leaving when Hamilton approached her and said “there is no way you are coming to station 206.” The female firefighter asked why and Hamilton said he knew she was “f---ing everyone in the fire department” and he didn’t want that under his roof at station 206. According to her, Hamilton also made a comment about her having “boy toys” all over the city.
Another captain, with whom Hamilton had come to the party, stepped in and pulled Hamilton away, apologizing to the female firefighter for Hamilton acting like “an idiot” and asking if she was okay. The female firefighter then left the party and the captain drove Hamilton home. He asked Hamilton about his comments and Hamilton replied, “You know how it is. If she comes down to 206 she will be off nine months.” The captain told Hamilton his comments were inappropriate and felt he had too much to drink.
The female firefighter went to work the next morning and discussed the events of the party with her crew at station 209. She told her captain that Hamilton had said if she went to station 206 she would be “impregnated within nine months, raped and she was f---ing her way around the shift or department.” The captain told his crew to keep things “under their hats” while he called Hamilton’s station, where he told the captain who had driven Hamilton home about the comments.
Hamilton denied making the comments and said it was just firefighter gossip and “joking around.” He spoke with the captain at station 209 and claimed he thought the captain was playing a prank on him. He then said if the female firefighter was upset, he would apologize, but he was told she was fine and an apology wasn’t necessary. He said it was a joke, he didn’t use the word “rape,” and things were getting “blown out of proportion.”
The district chief asked the female firefighter to write a statement. The statement included her account of both conversations with Hamilton and the comments about her getting pregnant and raped if she was transferred to station 206.
Nothing more was done until the city’s human resources department received a tip on Jan. 5, 2015. An investigation was launched and both Hamilton and the female firefighter were interviewed, as were several witnesses from the Christmas party. Hamilton maintained that he believed it was a prank and he never said the word “rape.”
On Jan. 7, 2015, Hamilton sent an email to the deputy chief expressing sorrow and acknowledging that his comments weren’t appropriate. He reiterated his belief that it was a prank, adding that he didn’t intend to make his fellow firefighter feel out of place and that his wife was a firefighter. The next day, he emailed the female firefighter to “truly apologize” for his comments and explain that he thought it was a set-up and that was the context in which he made them. He acknowledged that she had been centred out and for that he was “very sorry.”
The investigation report indicated Hamilton had violated the Ontario Human Rights code and several city policies dealing with conduct, workplace violence, and human rights. It determined Hamilton had threatened rape — “the most egregious act of violence that could befall a woman” — and recommended termination. The chief supported the recommendation and the deputy chief didn’t believe Hamilton’s apology was sincere, so Hamilton’s employment was terminated on Jan. 22.
Hamilton acknowledged some misconduct, but the union argued termination was excessive given the circumstances.
Context of comments
The arbitrator found that given the discussions in the female firefighter’s station about a prank — confirmed by several firefighters — and the fact it didn’t make sense for her to start a conversation with Hamilton with a statement that she might be coming to station 206 when no such decision had been made, it was likely that the female firefighter was at least initially “engaging in some light-hearted banter with (Hamilton) at the Christmas party.”
The arbitrator also found that the female firefighter’s claim that Hamilton said “rape” to her in the second conversation was not reliable, since no one other than her reportedly heard it, while there were several witnesses to the rest of the conversation who all confirmed the other comments. This gave credence to Hamilton’s adamant denial of using the word, which didn’t quite fit with the theme of his other comments, said the arbitrator.
“(Hamilton’s) comments were more directed towards (the female firefighter) being involved socially or sexually with other firefighters, and not directed at (her) being assaulted,” said the arbitrator. “While it is true (Hamilton) clearly mentioned (the female firefighter) getting pregnant, he was also talking about rumour and gossip surrounding her relationship with other firefighters.”
The arbitrator noted that it was possible Hamilton said the word and was too drunk to remember, but even if he did, the female firefighter never indicated she actually felt threatened. And when Hamilton was told of his comments the next day, he was shocked and thought it was a joke.
The arbitrator agreed that Hamilton violated the human rights code and city policies with his conduct, but he didn’t threaten the female firefighter and it was a single incident by someone with no previous discipline over 14 years with the city. The city was ordered to reinstate Hamilton with a three-month unpaid suspension instead, with compensation for lost wages and benefits from the end of the suspension period. As additional discipline, the arbitrator determined Hamilton should be demoted from captain to first-class firefighter, as his misconduct “does not meet the appropriate standards expected of a captain,” and required to participate in sensitivity and anti-harassment training.
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