Prevented from returning to work by the terms of a conditional discharge for a criminal conviction for harassing a fellow employee, a worker at a manufacturing plant was fired after repeatedly ignoring his employer’s requests for information about his status.
Employed for 33 years as a machine operator at a manufacturing plant, S.C. became attracted to A, who also worked at the plant. Considerably younger than S.C., A was in a managerial position outside the bargaining unit with no supervisory duties with respect to S.C.
Beginning in early 2004, S.C. began to make A the object of his unwelcome attentions, asking for her telephone number and attempting to arrange outings. When repeated attempts to rebuff S.C.’s attentions produced no results, A complained to the manager of Human Resources. A subsequent warning issued to S.C. initially produced results but, after eight months, S.C. resumed his pattern of approaching A in the hallways at work and in the cafeteria. S.C. then began to send A letters professing his love for her and proposing an intimate relationship.
A went to the police. S.C. was charged with harassment under the Criminal Code and convicted. However, S.C. was given a conditional discharge that required him to abstain from communicating directly with A. He was also prevented from coming within 100 metres of A’s residence or any place where she was known to frequent, including the manufacturing plant where they both worked.
In compliance with the conditions, S.C. stayed away from work. He also refrained from communicating his circumstances to his employer.
Before becoming aware of the criminal conviction and the conditions of his discharge, the employer sent a letter to S.C. on September 17, 2007 outlining a number of conditions that S.C. was required to satisfy before he would be allowed to return to work. The letter directed S.C. to contact Human Resources and arrange for counselling. S.C. did not respond.
The employer sent another letter about two weeks later reinforcing its requirement that S.C. not return to the workplace before consulting with Human Resources.
S.C. did not respond to that letter either or to two more letters that were sent the following month. However, in response to notification about a meeting at the plant that he was to attend with the plant manager and the manager of Human Resources, S.C. informed the employer by telephone that a court order prevented him from attending the plant.
In response, the employer acknowledged S.C.’s conditions by letter and modified his employment status to reflect an unpaid absence. He was told to keep in touch about his court dates and was invited to meet and discuss his return to work when conditions permitted it.
S.C. did not respond. Nor did he respond to subsequent letters that demanded he respond or face termination.
Failure to communicate
Alleging that he had abandoned his job and that his failure to communicate had frustrated the employment relationship, the employer fired S.C.
The union grieved.
Before the Arbitrator, the employer alleged that S.C.’s harassment of A was also a disciplinable offence that warranted termination.
While the union argued that the employer could not rely on the harassment issue because the letter of termination had not referenced it, the Arbitrator ruled that the circumstances warranted expanding the terms of discharge because the issue of harassment was integrally related to the events that led to S.C.’s discharge.
The Arbitrator dismissed the notion that S.C. had abandoned his job. There was no evidence to suggest that he had either formed an intent to leave his job or was indifferent as to whether or not it remained open to him.
S.C.’s refusal to communicate, on the other hand, was another matter: “[S.C.’s] refusal to respond to the Employer’s letter was a breach of his duty as an employee. Certainly after the January 14, 2008 letter [the last letter] there was no excuse whatsoever for failing in that duty. A failure to communicate is a matter of serious and disciplinable behaviour.” S.C.’s refusal to communicate was “deliberate and unjustifiable,” the Arbitrator said, and “sufficiently long to justify discharge in its own right.”
More than that, S.C.’s behaviour was destructive to the extent that a continued working relationship was no longer possible. He was guilty of criminal harassment and unrepentant, maintaining variously that A was “playing hard to get” and/or that she was part of some kind of plot on the part of the employer that was being orchestrated by the manager of Human Resources.
While a 33-year work history with no record of discipline was not to be disregarded, there were no other mitigating factors, the Arbitrator said.
“[S.C.] does not admit his guilt, despite a finding of guilt by a court of criminal jurisdiction, but rather continues to deny it. He said he simply blames his victim as the author of his misfortune. He has offered no apology then and does not offer one now. He blames both Ms. A and his Employer as participants in a plot to bring about his discharge. He states that at the very least he distrusts his Employer in a very profound way. Clearly the Employer does not trust him to return to the workplace and behave in a rational and productive manner. It is difficult to envision an employment relationship that could be rehabilitated or resurrected.”
The grievance was dismissed.
Reference: O-I Canada and United Steelworkers of America, Local 260. David A. McKee — Sole Arbitrator. James Knight for the Employer and Bernard A. Hanson for the Union. February 25, 2010. 34 pp.