In Sterling Crane v International Union of Operating Engineers Local 955 [Sterling], Arbitrator Norrie disagreed with the employer’s dismissal of an employee (the “Grievor”) after he made a derogatory comment about women in the workplace, and noted the investigation was insufficient. The arbitration decision underscores the importance of conducting thorough investigations into harassment and misconduct complaints, especially if the employer takes corrective action in relation to the investigation findings.

Background

The Grievor, a crane operator for the employer, allegedly stated that “women are ‘hos’”, a comment that was overheard by other colleagues in the lunchroom.

Following another employee’s complaint about the comment, the employer spoke to four other employees as witnesses. Subsequently, the employer dismissed the Grievor on the same day due to his breach of the employer’s Workplace Harassment Policy (the “Policy”).

A grievance was filed for unjust dismissal, seeking to overturn the Grievor’s dismissal and to replace it with a written reprimand and retroactive pay.

Arbitration Decision

While the arbitrator agreed that discipline for the Grievor’s comment was warranted, it substituted the dismissal for a three-day suspension and ordered the employer to pay the Grievor all lost wages and benefits from the date of his dismissal to when he began new employment. A key issue in the ALRB’s ruling was that the investigation was flawed.

The employer argued that the Grievor’s dismissal was justified, given the employer’s health and safety obligations to ensure a safe and respectful work environment, its legitimate goal of increasing and improving employment opportunities for women and other minority groups, and that the conduct occurred in the construction industry. The union argued that the Grievor was not intentionally trying to offend anyone when he made the comment, and that the comment “women are ‘hos’” was not directed towards women at the work site.

Arbitrator Norrie noted that despite the comment being made in the context of a private conversation, there was no reasonable expectation of privacy once the Grievor entered the lunchroom, especially given that his comment was loud enough to be heard by other individuals who were on the other side of the room. The arbitrator also noted that the Grievor did not apologize to the individuals who were offended by the comment, and that even if the Grievor’s comment was not directed at women in the workplace, it did not negate the impact of his comment and the fact that it violated the employer’s Policy.

Despite agreeing that the Grievor’s comment was disciplinable, Abitrator Norrie emphasized the following with respect to the employer’s initial investigation into the complaint:

• The employer failed to properly investigate the complaint regarding the Grievor’s comment. Although the failure to properly investigate was not detrimental to the employer’s disciplinary decision given that it was able to call evidence at the grievance hearing, the failure to investigate did result in a lack of evidence at the hearing upon which the employer could rely upon to support its decision.
• The investigation consisted of “scant statements” from three witnesses, a brief discussion with a fourth relevant witness, and no proper interview with the Grievor which ultimately resulted in gaps in the employer’s arguments.
• Management did not take notes of their discussions with the witnesses.

Ultimately, while the Grievor did make the derogatory comment, the employer failed to properly investigate the matter and failed to consider important context—the comment was not directed at anyone and was not as severe as other harassment cases. Arbitrator Norrie found that although disciplinary action against the Grievor was warranted, the employer’s decision to dismiss the employee was excessive in the circumstances.

Takeaways

The Sterling decision highlights common pitfalls in workplace investigations and the corrective action resulting from flawed investigations. Employers should consider the following best practices:

• Investigation Procedures: Employers should ensure that there are clear procedures in place to address complaints raised by employees, and that these procedures are implemented and followed in the workplace. When investigating allegations or complaints of harassment or other forms of misconduct, employers should ensure they speak with relevant witnesses and document the meeting with the witnesses, consider all evidence holistically, and assess the credibility and reliability of witnesses with the rest of the evidence.

Upon the conclusion of the investigation, complainants and respondents should be informed about any corrective measures taken in response to the investigation findings. Communication of the investigation findings should be done in accordance with the specific requirements under the Occupational Health and Safety Act or other provincial health and safety legislation.

• Corrective Action: If the investigator finds that the alleged misconduct occurred, the employer must consider the findings in their relevant context. Prior to any corrective action, the employer should consider what level of discipline is appropriate in the circumstances. Any corrective action should be proportionate to the conduct in question, and employers should consider how different circumstances may impact the severity of the corrective action required. In the Sterling matter, while the context of the male-dominated industry was an important factor, there were other important factors the employer should have considered in assessing the appropriate corrective action.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.