The victims and the grievors all tolerated and participated in “frisky and flirtatious behavior,” but the final incident was beyond the pale. The victim was believable; the grievors, in their contradictions, were not.
One correctional officer was fired and another was suspended after a female colleague charged that the two had picked her up and carried her into the men’s locker room, pinned her to a bench and then unfastened her pants.
The men grieved. The union disputed the sexual harassment charge and argued that the three were engaged in consensual horseplay.
Bawdy jokes, sexual innuendo and a degree of physicality were a feature of the workplace culture.
The Grievors — 1 and 2 — and the complainant E.M. were also known to socialize with each other and with other staff members at bars and nightclubs outside of work hours.
Testimony established that frisky and flirtatious behaviour was also a component of these outings.
Before lunch on January 26, 2007, Grievor 2 met Grievor 1 and E.M. at the control room of the provincial correctional facility. There was jostling and joking as the three left the control room together to go down the corridor to the lunchroom. While passing the men’s locker room, and without warning, the two men seized E.M. — one picking up her feet, the other grabbing her under the arms — and carried her through the door into the men’s locker room.
Safe word
E.M. claimed that despite her protestations and her use of what she had been told was a “safe word” to be used to put a stop to any pranks, the men pinned her on her back to a bench. E.M. said that Grievor 1 then reached in and unfastened her belt and pants.
At that moment running water was heard from the washroom area. The two men released E.M. and seconds later officer P.P. emerged from the washroom area laughing at what appeared to be a prank.
All four then left the locker room for the lunchroom. Jokingly commenting on what he had just seen to another officer in the lunchroom, P.P. drew a sharp rebuke from Grievor 1 who reportedly told him to “keep your f——— mouth shut or some day you may need the two of us.”
E.M. and the two grievors returned to the control room after lunch and relieved two staff members, leaving the three alone in the control room. E.M. said that Grievor 2 responded to her expression of displeasure about what had happened with a sarcastic comment. Grievor 1, according to E.M., made a number of coarse and aggressive sexual propositions.
E.M. prepared a formal complaint that night. The grievors were suspended pending an investigation. On February 8, the grievors were fired for violating policies against workplace sexual harassment.
History of pranks
That incident was horseplay, the union said. Given the history of pranks, the culture of the workplace and evidence that E.M. had willingly participated in such behaviour in the past, it was reasonable for the grievors to assume they had consent. The union denied the specific charges that her belt and pants had been unfastened and questioned her credibility with respect to her claims about her loud protestations. P.P. had testified that he did not hear shouts or see signs of distress when he came upon the three in the locker room, the union said.
The grievors likely did assume they had consent to engage in such behaviour and the incident may have started out as a prank, the Arbitration board said.
However, the grievors crossed the line when they ignored E.M.’s command to stop and when Grievor 1 unhitched her belt and pants.
The Arbitration board accepted E.M.’s version of events.
The notion that the incident was a prank simply did not square with the known facts. The key characteristic of pranks at that workplace was that they were public and they were shared.
That was not the case here. The incident happened in isolation and Grievor 1 made a dire threat when P.P. mentioned the incident publicly. Independent testimony concerning E.M.’s withdrawn and upset post-incident demeanour also indicated that what had occurred was not a joking matter.
P.P. did hear something, even though he failed to recognize it as distress. Under the circumstances, this was not improbable.
Vulgar comments
The Arbitration board also accepted E.M.’s version of what happened later in the control room. “The vulgar comments took place when there were no other witnesses, a pattern similar to what happened in the locker room, except that in the locker room the grievors had been surprised by P.P.”
While the Board did not accept E.M.’s attempts to downplay her participation in previous workplace hijinks, her unwillingness to face up to her past participation did not undermine her credibility with respect to what happened in the locker room that day.
“Taken as a whole E.M.’s version of events is inherently more probable. Her version is internally [consistent] and makes sense. The grievors’ version does not. There is no explanation for E.M.’s change in demeanour in the afternoon nor Grievor 1’s threat to a fellow officer except that something very improper had taken place in the locker room. There is no explanation why E.M. would suddenly fabricate the kind of accusations against the grievors, with whom [she] was very friendly at work, especially Grievor 2, that she knew might well cost them their jobs. The only explanation that makes sense is that E.M. did not fabricate her allegations and what she said took place in the locker room did in fact take place.”
Grievor 1’s termination was upheld. Grievor 2 was to be reinstated at another facility but without compensation.
