You make the call
This instalment of You Make the Call features a worker who was fired for sexually harassing a co-worker.
Jean-Louis Hardy, 56, was a general labourer at a sawmill operated by Tembec Enterprises in Hearst, Ont. He initially worked at the sawmill for another, related employer but officially became an employee of Tembec in August 2013. He had no prior discipline on his record.
Hardy was working in the sawmill on Sept. 6, 2017, with a 19-year-old female co-worker who was new. As the co-worker passed by him, Hardy told her there was a rip at the back of her jeans just below her buttocks. The rip exposed her underwear and skin and Hardy poked a finger of his gloved hand through the hole, touching the co-worker’s skin. He also made a comment that she was wearing “pretty pink” underwear. The co-worker immediately left to change her jeans.
The co-worker didn’t report the incident at that time. However, she regularly rode to and from work with a supervisor at the sawmill and she mentioned the torn jeans incident to him, as well as a Facebook conversation she had had with Hardy a few days earlier that had become sexually charged. The supervisor also didn’t report the incident to management.
One week later, the superintendent of human resources learned about it, but the supervisor who rode to work with the female co-worker told him the co-worker didn’t want to make a complaint. However, the superintendent of HR informed the production superintendent about it and met with Hardy and the co-worker separately.
The co-worker said that her parents had been worried by the Facebook conversation with Hardy and had called the police, but they didn’t charge him because he hadn’t done enough that would result in a conviction. The co-worker said the torn jeans incident upset her, but she felt she could still work with Hardy.
Hardy admitted to the HR superintendent that he had poked the co-worker in the buttocks, but didn’t grab her and it was “a joke.” He said there had been “some stuff” on Facebook, but because it had occurred away from the sawmill, it didn’t concern the company. He acknowledged that maybe he shouldn’t have touched the co-worker, but “if this young girl can’t take it, she has no business being here…If she’s going to work with men, she has to expect that.”
Both Hardy and the co-worker were told to go home while corporate labour relations, corporate HR, and the site manager were consulted. They decided to terminate Hardy’s employment on Sept. 19. When informed of this, Hardy reiterated that he had just poked the co-worker with his finger and not grabbed her.
After his dismissal, Hardy went to counselling to “help me manage my emotions” and to learn how about sexual harassment and respectful communications. He also started suffering from depression and anxiety and claimed to have suicidal thoughts. The union grieved the dismissal, arguing termination was too harsh and Tembec didn’t follow the principle of progressive discipline that was part of the company’s sexual harassment policy, which had a stated goal of correcting rather than punishing unacceptable behaviour. He also said he didn’t remember taking sexual harassment training at work, though Tembec had a document he had signed certifying he had taken such training.
You Make the Call
Was less severe discipline warranted for the worker’s harassing behaviour?
OR
Did the sexual harassment provide just cause for dismissal?
If you said less severe discipline was warranted, you’re right. The arbitrator noted that Tembec had an obligation under the Ontario Occupational Health and Safety Act to provide a working environment that was free of harassment and Hardy’s behaviour “undoubtedly met the definition of ‘sexual harassment’.” The arbitrator found that sexual touching was serious misconduct, and Tembec had reason for concern because Hardy didn’t apologize to the co-worker and didn’t display remorse for his actions. Though Hardy attended counselling, there was no evidence that he recognized the nature of his misconduct or wouldn’t repeat it and thereby threaten the safety of other female employees if he was reinstated, the arbitrator said.
The arbitrator also noted that the female co-worker was new to the sawmill and didn’t want to “rock the boat,” which likely influenced her decision not to report the torn jeans incident even though it upset her. This failure to report didn’t detract from the unacceptable nature of Hardy’s misconduct, though it may indicate the co-worker didn’t think it was serious, the arbitrator said.
The arbitrator also found that poking a co-worker with a gloved hand was “at the very low end of the catalogue of possible sexual assaults,” which is perhaps why the co-worker didn’t think it was worth reporting to management. In addition, Hardy had a discipline-free record before the incident, which indicated he could be trusted to behave if returned to the workplace.
The arbitrator ordered Tembec to reinstate Hardy with an unpaid suspension on his record since his termination to serve as discipline. See Tembec Enterprises Inc. and USW (Hardy), Re, 2017 CarswellOnt 19959 (Ont. Arb.).
