Offered to apologize, but wasn't clear on what she did wrong
A Calgary nursing assistant was fired for cause after fellow workers complained she improperly touched them repeatedly while on the job.
In April 2014, Fenny Mendoza was accused of sexual touching by Jacquie Gorsalitz and Louise Lovett, both nursing attendants who worked with Mendoza on the night shift at Carewest.
During repeated interviews with the employer, Mendoza denied that any sexual touching took place and she accused Gorsalitz and Lovett of waging a vendetta against her after a petition was circulated criticizing another worker’s performance.
After the petition become common knowledge, client care manager Allan Wong convened a meeting on April 22 to discuss it. He was surprised when Lovett brought up the issue of inappropriate touching and he told her to contact the police if she believed it had happened.
After the meeting, Gorsalitz spoke with Lovett and they discovered they were both concerned about unwanted touching from Mendoza. They decided to write a letter of complaint and present it to the union, the Alberta Union of Provincial Employees and the employer.
The police were also contacted but after speaking with the Gorsalitz and Lovett, no charges were laid because of the unlikelihood of a successful prosecution.
During the investigation, another worker complained of being touched by Mendoza.
On May 9, Mendoza was again questioned about her actions and she again denied that touching had happened, however, she “wished she knew who could say those things so she can say she’s sorry,” according to notes written by Stacey Hagkull, the employee relations administrator.
Management decided to terminate Mendoza, arguing she should have known the behaviour was not appropriate.
The face that she was an immigrant was addressed, but she had been in Canada for seven years, so it was dismissed by Carewest as a mitigating factor.
“Witnesses reported seeing you and experiencing you frequently touching other women’s breast and chest area, frequent questioning about breasts, showing photos of yourself in lingerie, and an incident in which you grabbed the crotch of a co-worker while she walked down the hall,” said the termination letter, dated May 27, 2014.
During a meeting, Mendoza said she wanted to say sorry, but she couldn’t provide a reason for an apology.
“Asked to explain why she wished to apologize, and to explain what for, she said that she did not know she had hurt anyone’s feelings and was sorry if she had,” said arbitrator Andrew Sims.
The union argued the employer rejected progressive discipline for what it characterized as actions that were “inappropriate in the workplace,” but not sexual harassment.
The union said firing Mendoza did not give her to chance to learn from her behaviour and potentially correct it.
But Sims rejected the argument: “(The touching) amounts to totally unacceptable interference with the personal integrity of three co-workers who are entitled to go about their duties free of such indignities.”
In rejecting the grievance, the arbitrator found nothing was unearthed that would mitigate the penalty of termination.
“It falls into that category of cases where the conduct, even for a first offence, presumptively justifies termination, with the employee carrying the responsibility to put forward some reasonable basis for substituting a lesser penalty,” said Sims.
“The grievor has provided nothing beyond her prior meritorious employment record to persuade us that a lesser penalty is warranted. In all the circumstances, we find we must uphold the termination.”
Reference: Carewest George Boyack Nursing Home and the Alberta Union of Provincial Employees. Andrew Sims — arbitrator. Damon Bailey for the employer. Ralf Kuntzemann for the employee. May 16, 2016.
