A support worker at a men’s hostel was fired after the employer deemed that there was little prospect that further discipline would correct the worker’s pattern of sarcastic comments, jokes and statements denigrating women.
Beginning as a security guard when he started at the hostel in 2004, F.P. made the switch to support work in 2006.
On September 2, 2009, F.P. was suspended for three days for making derogatory remarks and questioning the competence of a female colleague who had just been promoted to a managerial position.
It wasn’t the first time F.P. had been disciplined for making such comments. Between 2005 and 2009 there were eight incidents of discipline on F.P.’s record, mostly for “unprofessional” and “inappropriate” interactions with co-workers prompted by his views on the proper roles of women in society.
With his suspension, F.P. was also issued a written warning notifying him that he would be terminated for any further violations. According to the employer, F.P. had come to the view that women were being promoted in accordance with an extremist feminist ideology that was in clear conflict with the divine mandates as revealed by holy Scripture.
Just didn’t get it
However, despite repeated warnings, F.P. clung to his beliefs and continued to advance his views. He maintained his innocence in the face of discipline, persisted in blaming other people for his problems and, said the employer, “just didn’t get it.” In addition, just prior to insulting his co-worker, F.P. e-mailed a supervisor an excerpt from a treatise he had written on women’s roles according to the New Testament.
When he responded to his suspension by claiming he was being persecuted and then seeking to lodge a complaint under the employer’s own workplace harassment policy, F.P. was terminated. The union grieved.
The employer said that the termination was justified under the doctrine of culminating incident and argued that the numerous incidents of discipline for the same issue underscored F.P.’s lack of rehabilitative potential.
The union argued that F.P.’s behaviour did not warrant termination. It acknowledged that he remarked to his colleague that gender played a role in her promotion but denied that the remark was malicious and noted that he had subsequently apologized.
The union also acknowledged that F.P. had e-mailed his views about appropriate gender roles to his supervisor but argued that they were not exactly unsolicited as F.P. had engaged in earlier discussions on the subject with his supervisor and had referenced his work, which he had promised to send to her.
Inappropriate, sexist comments
Discipline was warranted, the Arbitrator said. The evidence showed that F.P. had made “inappropriate and sexist” comments. “These comments were of a vexatious nature. The comments were hurtful and served to undermine the authority of the supervisor and the Employer’s decision-making. [F.P.] knew, or reasonably ought to have known that such comments were unwelcome, inappropriate, and improper.”
The employer was bound to respond, the Arbitrator said, in order to meet its obligation under the Human Rights Code to provide a harassment-free workplace. “The issuance of a disciplinary response was, in such circumstances, warranted, and arguably, required on the part of the Employer.”
While discipline was warranted, termination was an excessive penalty in view of F.P.’s years of service, the Arbitrator said. However, while termination was excessive, there was no likelihood that a viable working relationship could be restored.
In the circumstances, the Arbitrator ruled that it was appropriate to void F.P.’s termination with cause and substitute it with a termination without cause. The employer was ordered alter F.P.’s employment record accordingly and pay him $13,000. The employer was also ordered to furnish F.P. with a letter of employment outlining his tenure and duties and to restrict any comments about F.P’s work history to the details provided in his letter of employment. The employer was further prevented from disclosing that its comments were legally restricted.
