When two employees came forward to complain that a third worker had sexually harassed them, the grievor alleged that they had “set him up.” The arbitrator felt that progressive discipline was unnecessary in a case of this seriousness.
A worker was fired following allegations that he sexually harassed two female co-workers. The union grieved, denying the substance of the allegations and charging that the worker was being treated in a discriminatory manner.
Hired in 1986, J.M. worked on a production line at a candy factory producing chocolate bars. He had one note of discipline on his record for failing to wash his hands.
The company and the union jointly developed and implemented a workplace harassment policy in the 1990s. Provisions for discipline up to and including termination were in place for violations of the policy.
On April 29, 2010, allegations that J.M. had been sexually harassing a female colleague — identified as Mrs. A — surfaced in a meeting attended by the company’s human resources director and union executives. Later that day, the human resources director met with Mrs. A.
Mrs. A said J.M. made her acquaintance shortly after she began at the company in September 2009. Before long, J.M. was coming to her workstation about 12 times per shift. According to Mrs. A, J.M. made numerous personal remarks about her body. He also extended invitations to her to go out with him after work even though he knew she was married. He also came up behind her once and began rubbing the base of her spine. As a probationary employee, Mrs. A did not want to cause trouble by complaining, but at a friend’s urging, she spoke to a union representative.
J.M. was defensive at an interview held on April 30 with the director of human of human resources and a union official. He denied he had ever touched Mrs. A’s breast even though no such allegation had been made. He also suggested Mrs. A was trying to “set him up.”
Three days later another plant worker came forward with allegations J.M. had sexually harassed her. Mrs. B detailed her allegations against J.M. at a meeting with the human resources director the following day.
Unwanted physical contact
Mrs. B described a pattern of harassment that began in 2004 with invitations from J.M. to go out with him. Mrs. B declined the invitations. Mrs. B said that J.M. would make frequent visits to her workstation. Mrs. B also alleged numerous incidences of unwanted physical contact. At least five times, she said, J.M. came up behind her when she was working and rubbed his groin against her backside.
Mrs. B said J.M. repeated this behaviour, accosting her in this manner and grabbing her breasts when he came across her in the elevator and stairwells. J.M. brushed off Mrs. B’s threats to report him saying it was his word against hers.
J.M. was fired on May 7. The union grieved.
The employer said that termination was warranted for sexual harassment characterized by repeated, aggressive physical contact involving more than one complainant. The testimony of the complainants was credible and there were insufficient mitigating factors to warrant substituting a lesser penalty, the employer said.
The union denied that J.M. had sexually harassed anyone. Mrs. A’s complaints, such as they were, were resolved in any case by the intervention of the union representative. The union said that J.M. and Mrs. B were friends and that the contact between them was consensual. Moreover, the investigation was flawed by a lack of confidentiality. J.M. had been treated unfairly and in a discriminatory manner, the union said.
The Arbitrator disagreed, indicating the company had cause to discipline J.M. and termination was appropriate.
No evidence to support alleged conspiracy
Mrs. A’s testimony was consistent, straightforward and credible, while J.M.’s not, the Arbitrator said. J.M. changed his story about why he frequented Mrs. A’s workstation. He first denied, and then admitted asking Mrs. A out. There was no evidence to support J.M.’s theory of a conspiracy
There was conflicting evidence about the nature of the relationship between J.M. and Mrs. B, the Arbitrator said. However, there was no indication the relationship was such that Mrs. B would have consented to J.M.’s actions.
The provincial Human Rights Code prohibits sexual harassment and the employer is obligated to take precautions to prevent harassment in the workplace. The union and the employer developed a policy on workplace harassment, which provided discipline that includes termination.
Serious misconduct
J.M.’s conduct amounted to “serious misconduct” that was in violation of the Human Rights Code and the company’s policy against harassment, the Arbitrator said.
“I accept that [the grievor’s] termination will have a severe impact on his ability to provide for his family. However, these three factors are the only mitigating factors that weigh in his favour. In this matter, the grievor has committed very serious acts of sexual harassment against two women, which includes persistent aggressive physical conduct.”
J.M. denied all culpability, the Arbitrator said. He showed no insight into his actions or willingness to accept responsibility. He blamed others for an alleged conspiracy against him and showed no remorse.
“In these circumstances, progressive discipline is not necessary and would, in my opinion, be futile.”
The grievance was dismissed.
