The Arbitrator decided repeated, sexually charged behavior was not in fun. Co-worker was repeatedly asked to stop, but persisted.
A senior worker at a steel mill was fired for physical and quasi-sexual harassment of a fellow employee. The union grieved the termination, arguing that the events in question amounted to horseplay with no sexual intent.
Hired in 1979, P.E. worked in metallurgy and quality control before shifting to the Bi Product department in 2009. There were six on the crew in that department, including M.W. who began at the company in August 2008.
Some two weeks after P.E. joined the crew, M.W. began to experience problems with P.E.’s conduct.
M.W. alleged numerous incidents of unwanted physical contact. M.W. said that P.E. would touch him, pat him and rub his shoulders. P.E. would also sit beside M.W. during training and drape his leg over top of M.W.’s leg. M.W. said this happened at least six times and that he had told P.E. to stop on each occasion.
There was also an encounter in the shower. M.W. said that P.E. had returned on some pretext into the shower room from the changing area after showering. P.E. then began talking to M.W. who was exiting the shower. P.E. was fully clothed — M.W. was not.
Wrong worker transferred
When M.W. complained about these incidents, his supervisor attempted to right the situation by transferring P.E. However, the supervisor transferred the wrong worker and P.E. remained on the crew.
During the night shift on October 26, 2009, M.W. and other members of the crew, including a new supervisor, were in the control room. M.W. was drawing a schematic on the whiteboard. While exiting the control room, P.E. made a detour and walked up behind M.W. P.E. then grabbed M.W. under the armpits and dry humped him five or six times.
M.W. complained to his supervisor who, along with the shift supervisor, made a report of the incident to the section manager. An investigation into alleged violations of the Code of Conduct was begun under item 20 of the collective agreement.
Three days after the incident P.E. approached the shift supervisor and expressed his disappointment with how M.W. was handling the matter. Whatever happened, it was not acceptable to rat out a fellow employee, P.E. reportedly told the shift manager.
Rats mugged in the shower
In the old days, P.E. would meet M.W. outside the gate and “put a beating on him.” Rats, he said, got mugged in the showers or pushed down the stairs on their way out of the change house. P.E. then advised the supervisor to have a chat with M.W.
During the course of the investigation, P.E. denied and/or downplayed all the material accusations against him. He had no recollection of incidents of touching as alleged. He could not really recall any serious complaints from M.W. What happened in the control room was just incidental contact, P.E. said. According to his recollection, he had just bumped M.W. with his hip while passing by.
P.E. was suspended and on November 20, he was terminated for engaging in a “pattern of discriminatory sexual harassment.”
The union grieved.
The company acknowledged P.E.’s long service but said that it was insufficient to mitigate the penalty. P.E. had engaged in a pattern of harassment of M.W. culminating in what amounted to an assault in the control room on October 26. Subsequent threats made by P.E. — apparently prompted by M.W.’s complaints — illustrated a clear lack of remorse for what he had done. Moreover, P.E. was untruthful. He denied that M.W. had told him to stop and, despite what everyone in the control room witnessed, maintained that he had only bumped M.W. with his hip on October 26.
Discipline was warranted the union said but the termination should be set aside. P.E. was 54 years old and close to retirement. Without reinstatement, he would lose pension benefits. P.E. had apologized and was no threat should he be reinstated. The company bore some responsibility too, the union said. If it had properly followed procedures, P.E. would have been warned earlier that M.W. was serious about his objections and the control room incident would never have happened. Similarly, had the first supervisor acted properly and transferred P.E., the culminating incident would have been prevented.
“Happy homo day”
In any case, P.E.’s actions were horseplay, not harassment, the union said. The dry humping incident had no sexual intent but was rather a kind of horseplay that was not uncommon in the workplace. The union said its investigations showed that dry humping, other simulated sexual acts and off-colour jokes were a feature of “Happy Homo Day,” which was observed by employees on the 10th day of every month. No discipline had resulted from these activities in the past, the union said.
The termination was upheld. The Arbitrator accepted that P.E. had no sexual intent. Nevertheless, his conduct constituted harassment. The Arbitrator said that P.E.’s efforts to downgrade and misrepresent his conduct were “intentionally misleading.” As well, P.E. had no explanation for the threats he passed on to his supervisor.
The Arbitrator did not accept that the conduct was condoned.
“It was submitted that what [P.E.] had done and intended with [M.W.] was consistent with what happened in other areas of the plant which included dry humping, touching and hugging other employees in the Homo Day escapades and which had not been subject of disciplinary action but considered as horseplay and condoned by supervision as occurred some years prior to this grievance.” The Arbitrator had no doubt that this occurred.
“There is however, an essential difference from the current issues in that the Grievor was clearly told to stop his unwarranted attention and harassment ….”
P.E.’s continuing harassment of M.W. in the face of clear objections made P.E. an unlikely candidate for reinstatement and rehabilitation, the Arbitrator said.
The grievance was dismissed.
Reference: Hamilton Steel GP Inc. and United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 1005. Howard D. Brown — Sole Arbitrator. Stephen J. Shamie for the Employer and James Fyshe for the Union. February 15, 2011. 43 pp.
