Worker said he was trying to be funny and didn’t intend to offend, but behaviour was unwelcome
Employers must be vigilant about sexual harassment in the workplace as they have a legal res;ponsibility to maintain a safe workplace. This includes making sure employees know what behaviour is or isn’t appropriate.
This is even more important when an employer runs a social event for employees, especially if alcohol is present. People can think they’re just having fun, but if anyone feels uncomfortable or threatened, there’s a problem. As the arbitrator in the case said, just because certain behaviour is tolerated, doesn’t mean it’s welcome.
An arbitrator has upheld the dismissal of an Ontario worker for sexual harassment after the worker posed naked on top of a female co-worker’s car at a company event.
George Mummery, 53, worked for 22 years with Innophos Canada, a producer of phosphate compounds for food production located in Port Maitland, Ont. Innophos had policies on workplace harassment that were outlined annually to employees and were placed on the company intranet.
Each year, Mummery and other Innophos employees attended a day-long event that featured presentations by management and the union — United Steelworkers (USW). At the end of the day, the company held a “fish fry” dinner at an outside venue.
Following the 2015 dinner, the venue informed Innophos that its security cameras had recorded inappropriate behaviour by someone at the event. It gave the company access to the security footage, which recorded video but not audio.
Mummery was seen standing at the bar with other employees when the finance manager approached them. As she stood there, Mummery circled around her and came up to her from behind, placing his hands on her hips. She shook him off and walked towards the serving table, but Mummery walked up behind her again and swatted her buttocks.
Another video of the venue’s parking lot a short time later showed Mummery and two other employees walking towards a car owned by a female employee. Mummery put a bottle or glass on the hood of the car — the female employee reported finding circular marks on the hood later — and removed his shirt, pants, and shoes. He climbed onto the car’s roof and slid over to the windshield, where he posed across the windshield. He continued to strike several poses while his co-worker took photographs with his cellphone.
After climbing down and putting on his clothes, Mummery “high-fived” another employee who came outside while shaking hands with another.
Later, Mummery was caught on security footage laughing with two other men at the bar when he struck a pose. Later, he was seen talking to a few other employees and striking the same pose.
Another video recorded after the dinner depicted Mummery at the bar again. He saw the female employee whose car he had climbed up on. Mummery extended his hand to her and when she took it, he raised it to his lips. He did it a second time before the female employee tapped his hand and pried it off with the help of another employee.
Shortly thereafter, the female employee headed for the exit and Mummery pointed towards her and struck a pose, placing his hands on his thighs, bending over, and thrusting his buttocks out behind him.
After viewing the footage, Innophos launched an investigation.
The female employee testified that Mummery’s behaviour towards her at the event was “creepy” and when she saw the video of him posing on her car, she felt humiliated and sickened. She testified she wouldn’t be comfortable seeing him at work any longer.
Other employees confirmed Mummery had mentioned his actions to them.
Mummery initially denied he knew whose car it was, but later said he did know while he was climbing onto it. He said at the time he thought it was “the funniest thing ever,” but then said “I’ve come to learn it’s the most shameful, embarrassing thing I’ve ever done.” He also initially said he did it as he was leaving for home and didn’t talk to anyone afterwards.
Mummery also said he hadn’t targeted or intended to intimidate either woman and he was sorry that he might be responsible for the discontinuance of the fish fry. When told the female employee felt sexually harassed, Mummery said he didn’t dispute “her interpretation” but if she hadn’t seen the video “we wouldn’t be here.”
Innophos terminated Mummery’s employment for sexual harassment targeted at the female employee.
USW grieved the dismissal, arguing Mummery’s conduct wasn’t sexual in nature and he was just being good-natured and humorous. It also said Innophos shared in the responsibility by providing access to “excessive amounts of alcohol” at the event.
Employee’s misconduct was harassment: Arbitrator
Arbitrator Owen Gray found Mummery’s initial denial that he didn’t know whose car it was rang false, especially since he later admitted to having known when he climbed on it. This led Gray to believe Mummery “knew more about his motivation in choosing that car than he was prepared to reveal.”
Gray also found that since Mummery thought his actions were funny, it was likely he told others about them and this was borne out on the footage. This proved he lied when he said he was on his way home and didn’t talk to anyone, said Gray.
Mummery and USW characterized the event as everyone having fun, but arbitrator Gray noted that just because some of the women tolerated his behaviour, it didn’t mean it was welcome.
Gray also found no evidence indicating Mummery suffered from a disabling addiction. Mummery chose to drink alcohol at the event and was likely well-versed in its effects, said Gray. In addition, Mummery didn’t say he might not have done it if he hadn’t been drinking.
Arbitrator Gray found Mummery’s actions were vexatious conduct that Mummery ought to have known to be unwelcome — meeting the definition of harassment in the Ontario Human Rights Code and the company’s harassment policy. In addition, he should have expected that posing naked on someone’s car, whether he knew whose it was or not, was likely to be unwelcome by the car’s owner. Though Mummery said he didn’t intend the female employee to see what he did, it was possible she might see video or hear about it, said Gray.
Gray also found that while Mummery said he was embarrassed and ashamed, he didn’t do anything to show he wouldn’t commit similar misconduct in the future. He said he regretted that the female employee saw the video — not that he actually did it.
“My sense is that (Mummery’s) only true remorse is that his behaviour was recorded by video cameras of which he was unaware, and that that had led to his discharge,” said Gray.
Though Mummery had a clean record and long service with Innophos, this didn’t overcome the risk he would do something similar in the future and the fact he didn’t seem to recognize his misconduct. Arbitrator Gray upheld the discharge and dismissed USW’s grievance.
For more information see:• Innophos Canada Inc. and USW, Local 6304 (Mummery), Re, 2016 CarswellOnt 8165 (Ont. Arb.).