Characterization of incident by grievor not plausible
Terminated following allegations that he groped a co-worker’s breast, a worker at a food retailer grieved. The improper contact was accidental, the union said.
Following a career as a travelling sales representative, A took part-time work as a service clerk at a supermarket. He was later promoted to the position of full-time Receiver and was responsible for unloading all the trucks that made deliveries to the store. A had seven years’ service when he was fired following an incident with a co-worker.
On August 9, 2010, A was taking his lunch in the lunchroom. A sat at a table with B. While sociable and friendly with each other at work, A and B did not socialize outside of work. A was in his late 50s. B was in her early 20s. Both were involved in relationships.
Over the course of lunch, A made a number of innuendo-laden comments referencing B’s lunch, which consisted of hotdogs. Having heard such comments before, B did not take offence. Instead, she talked up the benefits of her diet and exercise regime and boasted about her firming abdominal muscles.
B placed her hand on her stomach and then invited A to touch her “abs.”
Accounts differ about what happened next.
Outrage and disbelief
In B’s account, A reached across the table and squeezed her breast. B testified that she knocked A’s arm away and vehemently expressed her outrage and disbelief that A would do such a thing. A’s insistence that his actions were invited were a further outrage which caused B to contemplate punching A in the face.
Another co-worker entered the lunchroom at that point, which had been vacant during the incident except for A and B. B told the co-worker what had happened. The co-worker said nothing and left.
A did not apologize. A refused to acknowledge B’s distress and laughed off her protests. A continued to assert that she had invited him to touch her breast.
According to A, he had reached in to touch B’s abs — as invited — and had inadvertently touched the side of her breast. B acknowledged what had happened. A had said that it was an accident. They remained at the table for a few minutes following the incident. It was nothing serious, according to A, and they both laughed it off.
A was fired following an investigation into the incident after B complained to the employer.
A grieved his termination.
Assessing the stories on the balance of probabilities and the testimony of the two principals, the Arbitrator found B to be the more credible witness.
Video surveillance tape of the incident was of limited value. There was no audio, and the perspective of the grainy images featured B’s back to the camera and an obscured view of A. However, the video record did confirm that A and B were sitting at a table, that there was a brief flurry of activity, that a co-worker briefly entered the lunchroom and that A then left the lunchroom about two minutes afterwards.
While the fact that B continued to stay at the table for about two minutes after the alleged incident seemed at first to support A’s contention that the incident was not so serious, the Arbitrator ultimately came to a different interpretation.
B was shocked and angered by A’s actions but she was in no way physically afraid of him. B expressed her outrage and anger in that time and afforded A the opportunity to apologize and show contrition. He did neither. This further angered B who was then moved to lodge a complaint against A.
There were inconsistencies in A’s testimony. He first denied having a conversation about the incident with the shop steward. He then admitted to the conversation but would not acknowledge details of the conversation testified to by the shop steward. He also did not initially remember the co-worker walking into the lunchroom.
A did not acknowledge what he had done. He did not apologize and continued to insist either that what happened was an accident, or that it happened at B’s invitation or that the incident was somehow her fault.
A’s story was not plausible, the Arbitrator said. “In order to uphold [A’s] account, I would have first to decide which of the several competing versions of it I should accept. I would have to reject not only [B’s] account, but also the other witnesses.”
The grievance was dismissed.
“The grievor’s conduct amounted to sexual assault. The intentional unwanted touching of another person’s private parts is wrong. When wrongdoing of this sort occurs in the workplace and comes to the attention of the Employer, it becomes a matter of industrial discipline whether or not it is prosecuted as a criminal offence. The grievor knew, or ought to have known, that placing his hand on the complainant’s breast without her prior invitation or consent was unacceptable. He did not need a Company policy or a provincial statute to tell him that.”
The company had just cause to terminate A, the Arbitrator said.
Reference: Zehrs Markets/Real Canadian Superstore and United Food and Commercial Workers, Local 1977. Paul Craven — Sole Arbitrator. Genny Na for the Employer and Patrick Groom for the Union. December 21, 2010. 11 pp.