Evidence showed comments were part of joking context
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 captain at a Brampton station 206 in July 2013.
At a September 2014 golf tournament for firefighters, Hamilton’s foursome came to the tee of a hole to which a female firefighter from 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.
A Christmas party for Brampton firefighters 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. He gave another firefighter $40 and told him to keep his glass full all night. Many of the 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 said she might be transferred to station 206, and Hamilton reacted negatively. He said if she was transferred to station 206, she would end up pregnant within the first week.
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.
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 OK.
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.”
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. He said it was a joke and 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. 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. The next day, he emailed the female firefighter to “truly apologize” for his comments and explain that he thought it was a set-up.
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 and recommended termination. Hamilton’s employment was terminated on Jan. 22.
The Brampton Professional Firefighters' Association argued termination was excessive and grieved the dismissal.
Context of comments
Arbitrator John Stout found that given the discussions in the female firefighter’s station about a prank — 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.”
Stout also found that the female fighter’s claim that Hamilton said “rape” to her in the second conversation was not reliable, since no one other than her apparently heard it. This gave credence to Hamilton’s denial of using the word, which didn’t quite fit with the theme of his other comments, said Stout.
“(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 Stout. “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.”
Stout noted that it was possible Hamilton was too drunk to remember saying the word, but even if he did, the female firefighter never said she felt threatened.
Stout agreed that Hamilton violated the human rights code and city policies, 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. As additional discipline, Stout determined Hamilton should be demoted from captain to first-class firefighter and he was required to participate in sensitivity and anti-harassment training.
For more information see:
• Brampton (City) and Brampton Professional Firefighters Assn. (IAFF, Local 1068) (Hamilton), Re, 2016 CarswellOnt 19791 (Ont. Arb.).
