At a meeting attended by employees at the same level, the grievor made a remark that a colleague found sexist. Because he had been disciplined earlier for a similar remark, he was terminated. The arbitrator found the remark met none of the criteria for sexual harassment and ordered him reinstated.
A lab technician at a uranium conversion refinery was fired for suggesting at a meeting that new hires should be “men only.”
G.N. was one of about 20 analytical lab technicians at the refinery. He had 31 years of service.
There were no problems with G.N.’s work performance. However, when he was fired in February 2011, G.N. had a three-day suspension on his record.
The suspension, dating from 11 months earlier, was punishment for a vulgar remark G.N. made to a group of men regarding a female colleague who was pregnant as a surrogate mother. The remark was reported to the woman. A complaint was lodged, an investigation was conducted and G.N. was disciplined.
In addition to the suspension, G.N. was reminded about the company’s Respectful Workplace Policy. He was required to make a written apology to the colleague and to undergo counseling. He was also cautioned that any further violations of the Respectful Workplace Policy would result in further discipline up to and including termination.
The issue of training and staffing came up at a meeting of the plant’s technical staff on Feb. 8, 2011. About 16 were in attendance, half of them women, including the former surrogate mother.
When a supervisor suggested that there was a need to hire four new technicians, G.N. reportedly responded by agreeing and adding, “make sure they are all men.”
Remark “segregated” all the women in the room
The woman who had lodged the earlier complaint challenged the remark and stated that G.N. had just “segregated” all the women in the room.
She also complained afterwards to the supervisor who had chaired the meeting.
The supervisor spoke to G.N. who expressed regret in the event that he had offended anyone. He said that he meant no offence and that since being disciplined, he was trying to tone down his language.
The woman who complained, and another female colleague, made a further complaint to Human Resources. An investigation was conducted. G.N. was fired.
The letter of termination referenced the “men only” remark, G.N.’s earlier discipline and the warning about consequences for further breaches of the company’s Respectful Workplace Policy. The employer said that G.N.’s comment violated the policy. The employer also said that statements made by G.N. during the investigation into the incident led it to believe that G.N. failed to understand the seriousness of his misconduct. The letter alleged that G.N.’s behaviour had created a “poisoned work environment” for his female coworkers. The employer said that the situation was “intolerable” and that in view of his prior disciplinary record, the company had no option but to terminate him immediately.
The union grieved.
“Gross overreaction”
The union said the employer’s disciplinary response was a “gross overreaction” to a minor offence. The remark was free of any malicious intent. To terminate a 31-year employee with only one disciplinary blemish on his record for that offence was “egregious and unsustainable,” the union said. While the employer cited its Respectful Workplace Policy, it failed to follow the procedures set out in the policy. The employer’s disciplinary response to G.N. was clearly discriminatory, the union said.
G.N.’s remark was not a termination offence, the Arbitrator said.
“The grievor, who has 31 years of service, blemished only by his vulgar remark about [his colleague] 11 months earlier, has no power to hire and fire or to make recommendations regarding women. He is but a peer to his female colleagues; he may well have views or opinions about women that are politically incorrect and patently inappropriate in a contemporary workplace, but … his mere expression of his view, which targeted no woman in particular at the meeting, could not be the basis for terminating his employment.”
The Arbitrator expected that there must be more evidence forthcoming to support the employer’s apparent case of a course of misogynistic conduct on G.N.’s part that could account for an allegedly poisoned workplace. There was nothing of a degree to support such a charge.
G.N.’s remark — “stupid” though it may have been — was not sexual harassment according to the standard identified by the Supreme Court of Canada, the Arbitrator said.
No abuse of power
“His comment was not an abuse of economic or sexual power; frankly, it appears he had neither. Obviously it cannot be characterized as an unwelcome sexual action or a sexual demand. The only issue under the Court’s definition is whether it falls under the category of ‘a demeaning practice, one that constitutes an affront to the dignity of the employees forced to endure it.’ In my view, it does not.”
The remark was obviously offensive to the two women who complained, the Arbitrator said, but that — by itself — did not raise it to the level of affront contemplated by the Supreme Court.
“The remark was stupid; it betrayed a lack of judgment; it was out of touch with both the workplace culture and the Employer’s own values and practices. But it was no more than that.”
The grievance was allowed. G.N. was reinstated without loss of seniority or benefits. He was awarded a five-day suspension and reimbursed for lost wages.
Reference: Cameco and the United Steelworkers. Dana Randall — Sole Arbitrator. Hugh Dyer for the Employer. Kevon Stewart for the Union. Oct. 21, 2011. 12 pp.
