Workplace harasser given second chance

Employment relationship not destroyed: Arbitrator

An Ontario worker who verbally harassed two female co-workers deserves a second chance at showing respect in the workplace, an arbitrator has ruled.

Steve Stewart, 55, was a labourer for Black and McDonald, a construction contractor in the Toronto area. He was hired in late 2011 to work at the Darlington Nuclear Generating Station in Clarington, Ont., with some periods of layoff. He had also worked at the Darlington site with other contractors since 1999. During his time with Black and McDonald, Stewart had no instances of discipline.

The Darlington station was operated by Ontario Power Generation (OPG), which had a code of conduct emphasizing respect in the workplace and a zero tolerance for harassment, discrimination, and abusive conduct. Black and McDonald also had a policy on workplace violence and harassment. Stewart was trained on the policies of both companies.

On Nov. 23, 2015, Stewart was working at a reactor vault with a female radiation protection co-ordinator who was an OPG employee. The co-ordinator’s job was to instruct workers on where to go based on the levels of radiation in various spots.

Stewart didn’t follow the co-ordinator’s instructions and went to an area he hadn’t been instructed to enter. When the co-ordinator told him to go back to where he had been, called her a “stupid f---ing b----“ and another sexist slur. According to the co-ordinator, Stewart was “completely out of control, kicking hoses, screaming at me and waving his arms.” Other workers nearby saw his behaviour and heard his comments, though he later denied he said anything to her.

The co-ordinator claimed Stewart had made offensive comments before, calling his former wife a name and saying more than once he wanted to find a good woman to cook and clean for him. She reported the incident to Black and McDonald.

Black and McDonald investigated and learned from another female employee that Stewart had been making demeaning remarks about her since the summer of 2015 and he also bragged about his sexual conquests. In addition, she reported Stewart had suggested her husband was cheating on her and her friendship with a male co-worker was more than just a friendship.

Other employees confirmed the complaints of the two women and the company decided to dismiss Stewart for harassment and mistreatment of female employees on Nov. 25. Some time later, Stewart wrote apologies to the women, saying he had been unprofessional and used “rude and obscene” language. He asked the co-ordinator to “accept my forgiveness” and offered the other co-worker “sincere apologies if I offended you in any way.”

However, though Stewart said he regretted the Nov. 23 outburst, he denied any other harassment outside of that incident, saying coarse language, jokes and teasing were common at the Darlington nuclear station. He also explained that on Nov. 23 he was tired after working overtime, had a sore leg and was frustrated with waiting for instructions. The union grieved the dismissal, arguing it was excessive and unnecessary.

The arbitrator accepted the womens’ accounts of what happened, as they had no reason to lie and they were backed up by other employees. He considered Stewart’s version as minimizing his conduct and still attempting “to deny elements that seem obvious.”

The arbitrator also found Stewart’s apology, coming weeks after his dismissal, to be “inadequate and likely prompted by his termination.” He denied his misconduct until after he lost his job, when he realized he must apologize.

However, the arbitrator also found Stewart realized he had a tendency to say things that were offensive to others and he knew he needed to turn over a new leaf. In addition, Black and McDonald didn’t ask him for a response to any of the allegations in its investigation and thus failed to consider whether a lesser penalty would send the message that such behaviour was unacceptable.

The arbitrator determined that Stewart deserved a chance to show he could change and be respectful to his female co-workers. Black and McDonald was ordered to reinstate Stewart at the next call for workers at Darlington with a disciplinary suspension on his record from Nov. 25, 2015, until his reinstatement, with no back pay. In addition, Stewart was to be subject to a last chance agreement that stipulated any further violation of the OPG code of conduct or Black and McDonald workplace violence and harassment policy would result in termination of employment. See Black & McDonald Ltd. and Ontario Provincial District Council (LIUNA, Local 183) (Stewart), Re, 2016 CarswellOnt 1672 (Ont. Arb.).

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