The grievor’s claim that his female coworkers had permitted (or encouraged) his sexual advances was not supported by the balance of the evidence. His assertion that his transgressions were the result of brain damage was plausible, but his symptoms were inconsistent with that type of injury.
A part-time maintenance worker was fired for making lewd sexual comments and grabbing two female coworkers. The union grieved.
The union acknowledged the worker had committed some of the acts as alleged.
However, the union argued sexual banter was a feature of the culture at the workplace and the worker’s inappropriate and impulsive behaviour was due to a brain injury he sustained in a motor vehicle accident in 2002.
X began working part-time at a long-term care facility in 2007. He had worked a total of about 2,000 hours when he was fired in May 2009.
Prior to his termination, X was working with a male coworker. Both were wearing rubber gloves coated with powder. The coworker made a remark to X about the handprints that the powdered gloves left on their dark uniforms.
Grievor alleged victim gave permission
X said, “Do you know who really likes my handprints on her ass?” The coworker responded to the prompt. X then said, “Your wife.”
The coworker threatened to punch X’s teeth out if he made any similar remarks in future.
Some time later, the coworker became concerned about the potential consequences of having made such a threat. He reported the incident.
In the course of the investigation into the incident, a number of employees came forward to report incidents of inappropriate behaviour by X.
One female coworker reported that X was given to boasting about his sexual exploits in extremely graphic detail. She said that his commentary was unsolicited and that it made her uncomfortable. She also said that he leered at her and at other female employees and that she avoided him as much as possible.
A female health care worker at the facility reported that on a number of occasions X made reference to the size of his penis by making comparisons to a 12-inch piece of wooden dowel that he carried as a key chain.
Other female workers reported that X had asked them directly about their sexual practices and commented on their menstrual cycles.
X also said to another female maintenance worker, whose mother also worked at the facility, that he was interested in having sex with a “mother/daughter team.”
In fact, those two women also reported to the employer that on separate occasions X had come up behind them while they were cleaning in a washroom and grabbed their bottoms.
X was interviewed pursuant to the employer’s investigation on May 11, 2009. At that meeting he denied grabbing anyone.
He later amended his denial. He said that the contact he made with the daughter was in the nature of an accidental brush. He also claimed that the mother had earlier given him explicit permission that he could “touch her ass anytime.”
Sexual banter
X also characterized the sexual banter in the workplace as common and consensual.
X was fired on May 20. The Arbitrator upheld the termination.
While four female workers testified that sexual talk was not uncommon in the workplace, the Arbitrator found that there was substantial animosity between various employees at the workplace and that their testimony was coloured by their animus and the pursuit of personal agendas.
As well, the evidence that bawdy talk was common in the workplace was thin. The only other people identified as regular participants in such talk — other than X — were men who had either been disciplined, were dead or did not work there anymore. Whatever may have happened in the past, X’s behaviour was not common in the workplace anymore, the Arbitrator said.
X’s assertion that his coworker — “a married woman, old enough to be his mother” — gave him permission to “touch her ass any time,” was simply not in line with the “preponderance of probabilities,” the Arbitrator said.
The Arbitrator accepted that there was sufficient prima facie evidence to support X’s termination for sexual harassment.
The only remaining question was whether or not X’s aberrant behaviour was due to the injury he suffered and if it constituted a disability.
Two expert witnesses testified. They disagreed as to whether or not X’s misconduct was linked to his cognitive disability to the degree that his disability displaced his personal responsibility for his behaviour.
Social disinhibition
The experts were agreed that social disinhibition, such as that characterized by X’s behaviour, was not uncommon in people who had suffered catastrophic brain injuries.
It was typical for people with those injuries to make sexually inappropriate remarks because they lacked a social filter and the ability to properly gauge a social situation.
However, the Arbitrator accepted the opinion of the employer’s expert — and the union’s expert did not disagree — who said that such behaviour usually manifests itself shortly after such an injury.
That was not the case here. There were no reports of X behaving in that manner until eight years after his accident. More than that, X’s inappropriate attentions were focused — for the most part — on two women. This too was not the typical behaviour associated with such an injury, according to the employer’s expert.
The Arbitrator dismissed the grievance: “Given the consistency of the opinions of [the expert witnesses] on the crucial questions of the time when deviant behaviour could be expected to appear following a brain injury and the number of people to whom such behaviour would likely be directed, the union has failed to satisfy me that X’s brain injury accounted for his offensive behaviour.”
Reference: Regional Municipality of Durham and Canadian Union of Public Employees, Local 132. Michael Bendel — Sole Arbitrator. John McLuckie for the Union. Matthew R. Wilson for the Employer. Sept. 2, 2011. 37 pp.
