Vulgar comments more than just jokes

Ontario worker suspended for 20 days for two incidents involving sexual comments about co-worker and his wife

Vulgar comments more than just jokes

Background

Progressive discipline is an important concept in both unionized and non-unionized workplaces — workers must be given a chance to improve or be warned that their job may be in jeopardy due to misconduct or poor performance. However, if the misconduct is serious or the worker doesn’t appreciate their need to improve, it may be appropriate to go straight to a severe form of discipline — like a 20-day suspension.

An Ontario worker’s 20-day suspension for sexually harassing comments to a co-worker has been upheld by an arbitrator.

The 47-year-old worker was a power cable technician for Hydro Ottawa, hired in 1996. He normally worked in the above ground operations involving utility poles, wires, and other electrical infrastructure above the ground, but in 2019 he was assigned to underground operations on a one-year rotation.

In November 2019, the worker was assigned to work out of a building with a large garage where Hydro Ottawa trucks and vans were parked when not in use. He frequently joked around with colleagues about everyday work matters and sometimes people made jokes about sex. He felt this his jokes were well-received and no one had complained to him.

On Nov. 21, a co-worker was walking to his van in the garage and passed by the worker, who was sitting with his bucket truck partner at the back of their truck on a bench. The co-worker stopped to say hello and they had a conversation. According to the co-worker, the worker at one point asked him if he received oral sex or performed it on his wife. The co-worker felt uncomfortable, but ignored the worker, finished his conversation with the worker’s partner, and left.

The co-worker didn’t mention the comments to anyone that day. He felt the worker should have understood that his refusal to participate in the discussion on that topic meant that he didn’t like the comments, but he didn’t confront the worker to avoid conflict.

Six days later, on Nov. 27, the co-worker arrived at the garage in mid-afternoon to clean off his van. As he got out of the van, he saw the worker, the worker’s partner, and a third employee. The worker’s partner asked him if everything was okay. The co-worker said yes and the third employee asked him what he was making for dinner. The co-worker claimed that after he answered, the worker said he should go home and perform oral sex on his wife.

The comment made the co-worker angry, so he shook his head, made a comment, and walked towards the staff changeroom. However, he remembered that he had left personal protective equipment in his van, so he headed back to get it. As he approached, the worker made a gesture associated with performing oral sex on a woman and made another comment. The co-worker started yelling at the worker and the worker laughed in what the co-worker believed was a disrespectful manner.

The worker approached and the co-worker pressed his finger into the worker’s shoulder, saying that he had had enough. The worker said it was a joke and then said “don’t touch me.” Soon, both men were yelling.

The co-worker continued on to his van, but the worker followed him so the co-worker couldn’t exit out the back of the van without pushing past him. According to the co-worker, the worker said that if he ever touched him again he would “smash your f---ing teeth in.” The co-worker said he deserved more respect and left.

The co-worker was upset because his wife — who was also a Hydro Ottawa employee — had been sexually harassed at work. That evening, he emailed management about both the incident that day and the Nov. 21 incident. He said he hoped that he and the worker could work together in the future and he understood that he should make it clear right away when someone made unacceptable comments that were unwanted.

On Nov. 29, the manager of underground operations texted the co-worker to tell him he was to remain off work until further notice. The co-worker eventually went on sick leave due to stress and anxiety from the incidents and didn’t return until Jan. 8, 2020.

Worker acknowledged joking around but denied comments

The worker was sent home while management investigated to keep him separated from the co-worker. They met with each of the employees who had been present on Nov. 27. According to the worker, they had been discussing sex at a meeting on the morning of Nov. 21 and the co-worker didn’t show any discomfort. He acknowledged mentioning oral sex, but denied making a comment about the co-worker’s and his wife. He said he and the co-worker hadn’t talked in that manner before, but they had a history of joking around.

The worker said that the Nov. 27 conversation had started discussion dinner plans and he said it “might be a good night to try some vagina.” He claimed that the co-worker had laughed before heading to the changeroom. However, the co-worker then turned around and started yelling before pushing two fingers into his chest. This upset him because the co-worker knew he had had open heart surgery less than a year earlier and it hurt. He claimed not to understand why the co-worker was upset.

According to the worker, he tried to calm the worker down, but the co-worker continued to yell. Eventually he told the co-worker to pull him aside and talk to him if he had a problem. He claimed the co-worker swore at him and said he knew people upstairs and would “clean house with you.” The worker denied making a vulgar gesture with his fingers.

A few days later, the worker told the manager that he was sorry for his part in the conversation. He said that he had no malicious intent and he was trying to make the co-worker laugh. He also noted that the co-worker had yet to apologize to him for yelling at him and poking him.

Management obtained video surveillance footage from the garage from Nov. 27. The footage depicted the co-worker and the worker behind the van, with the co-worker pointing his hand at the worker. He then poked the worker in the shoulder and immediately dropped his hand. There was no sound, but both men appeared agitated, not calm as the worker claimed he was. It also showed the worker following the co-worker around the truck and prolonging the altercation.

20-day suspension

They considered a 20-day suspension that had been given to another employee about comments made to a female co-worker about what he wanted to do to her sexually and showed no remorse or recognition of the inappropriateness of his conduct, as well as a 10-day suspension to an employee for making sexually explicit comments to a summer student, after that employee admitted to his misconduct. They decided a 20-day suspension was appropriate for the worker.

On Dec. 19, Hydro Ottawa suspended the worker for 20 days for making “unwanted sexual remarks and gestures,” threatening his co-worker, and failing to be forthright in the investigation, contrary to the code of conduct. The union grieved the suspension as too severe.

The worker claimed that he didn’t understand why his co-worker was so upset.

The arbitrator found that the worker’s story “lacks plausibility in a number of areas.” In both his interview and testimony, his approach was that he had done nothing wrong, despite the fact that the video footage showed that he didn’t stay calm as he had claimed. In addition, the co-worker’s version of events was consistent from when he initially reported it to the hearing. The arbitrator determined that the incidents happened as reported.

The arbitrator noted that the worker’s comments were “offensive and unwanted on any objective standard” and there was no evidence that the co-worker had discussed his relationship with his wife with the worker. All indications were that the worker introduced the subject and then persisted with it even when his co-worker didn’t engage in it, compounding it by making a vulgar gesture and following the co-worker after he became upset.

The arbitrator found that the worker, like all employees, was familiar with the code of conduct and he should have known his conduct was inappropriate. The two incidents also meant it wasn’t isolated misconduct and, although he express remorse to the manager, but he clarified later that he was remorseful not for his conduct, but how the co-worker took it.

Despite the fact that the worker was a long-service employee with a clean disciplinary record, the arbitrator upheld the 20-day suspension.

“While I am not aware of a case where an arbitrator imposed a more severe penalty than the penalty chosen by management, and I am not about to embark on that exercise in this case, the [worker’s] conduct and testimony leads to the conclusion that a 20-day suspension may not have been enough to make clear to the [worker] that he must change his ways,” said the arbitrator. “Reducing the penalty in this case would send the wrong message to the [worker] and would risk emboldening his behaviour in the future.”

For more information, see:

  • IBEW, Local 636 and Hydro Ottawa (Boyd), Re, 2021 CarswellOnt 14368 (Ont. Arb.).

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