Worker suspended for harassment, fired for retaliation

Worker continued misconduct after 15-day suspension for harassment

An Ontario arbitrator has upheld the termination of an employee who sexually harassed a co-worker.

The employee, referred to as R.V. in the judgment, was the subject of a complaint by a co-worker who was the only full-time female employee at the Blue Mountain facility for Unimin Canada, a producer of industrial minerals.

The female co-worker was comfortable in the male-dominated workplace, joking and exchanging coarse language with her co-workers. However, R.V. made fun of her size, eating habits and sexuality on several occasions, making her uncomfortable. He targeted the co-worker with belittling comments and attempts to embarrass her. He also made comments to other employees behind her back and they were getting tired of R.V.’s behaviour.

The female co-worker filed a complaint with Unimin on Aug. 1, 2013. Her complaint included the following examples:

• R.V. showed her a picture of an obese woman in the newspaper and said “I didn’t know your picture was in the newspaper.”
• At a company event, she asked for a medium T-shirt and R.V. said it wouldn’t fit.
• At a charity barbecue, R.V. changed her food order from one hamburger to 10 hamburgers and 15 sausages.
• She ordered a diet coke and R.V. said to her and others that “it was not going to help.”
• R.V. ended a humourous conversation with a crude comment to her.
• R.V. made comments about her mother and her own sexual activity.

The company investigated and interviewed various employees, some of whom said R.V. consistently made graphic sexual remarks about women and called the female co-worker “a fat pig and a fat cow,” but R.V. denied the allegations.

The evidence was sufficient to prove R.V.’s harassing conduct, so Unimin suspended him for 15 days. He was given a suspension letter that stipulated any retaliation against the co-worker who filed the complaint would result in “immediate termination.”

The company agreed to reduce the suspension to 10 days if R.V. wrote a letter of apology to the company and the female co-worker. R.V. submitted an apology letter that said: “I am found to be in ‘breach of company policy. From this day forward I will conduct myself free from unprofessional behaviour towards complainants and to Unimin’s satisfaction.”

R.V. returned to work on Sept. 25, 2013. About four weeks later, the company became aware of potential retaliatory conduct by R.V. The female co-worker said he refused to talk to her and often looked at her, then looked away and would say something to someone else. Another employee reported that he had heard R.V. say words to the effect that “once the dust settled, he would go after (the female co-worker).” The employee also said R.V. stood up in the lunchroom and told a group of employees loudly that he had a list of everyone who had talked, he hadn’t apologized, the terms of his apology were lame and he knew the names of the people who participated in the investigation. R.V. was also heard telling someone “there are rats everywhere.”

Unimin terminated R.V’s employment on Nov. 5, 2013, for violating its harassment policy and his obligation to refrain from retaliatory conduct against his female co-worker.

The arbitrator found the female co-worker’s report of R.V. looking at her and whispering things to colleagues was hearsay and could not be relied upon as retaliatory or intimidating conduct. However, the other worker’s report of his comments and his announcement to a group of employees was serious. His denials of such behaviour was “not remotely credible,” said the arbitrator.

The arbitrator found R.V. showed no remorse in his misconduct and violated the company’s harassment policy and his suspension agreement. The termination was upheld. See Unimin Canada Ltd. and USW, Local 5383 (V. (R.)), Re, 2014 CarswellOnt 8915 (Ont. Arb.).

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