Case decides whether dismissal was 'excessive' or appropriate
In a recent grievance arbitration case in Alberta, a worker was terminated for making inappropriate comments of a sexist nature in the workplace.
The case highlights the importance of respectful workplace policies and the challenges employers face in balancing the need to enforce these policies while also adhering to the principles of progressive discipline. The arbitration decision also discusses the details of the incident, the employer's response, and the arguments presented by both parties.
The events took place against the backdrop of the construction industry, which has historically been male-dominated and has faced challenges in creating inclusive and respectful work environments for women.
The employer had taken steps to address these issues by implementing a comprehensive Workplace Harassment Policy and providing training to employees on respectful workplace practices.
Background of the case
The worker, a crane operator, was employed by a construction company. On the morning of August 1, 2023, the worker entered the lunchroom trailer where the morning Toolbox Talk, a daily safety meeting, was to take place.
During this time, the worker made a statement along the lines of "women are [hoes]," which was overheard by others in the lunchroom, including two female crane operators. The comment was made in the context of a conversation the worker was having with another male employee about the latter's personal relationship issues.
As a result of this incident, the worker was terminated the same day for violating the employer's Workplace Harassment Policy.
The policy had been communicated to employees through various means, including Toolbox Talks, respectful workplace training, and posting the policy in the lunchroom.
According to the arbitrator, the incident underscored the ongoing challenges faced by women in the construction industry, where sexist attitudes and behaviours can create hostile and unwelcoming work environments.
The employer defended its action, saying that terminating the worker was intended to send a strong message that such conduct would not be tolerated and to reaffirm its commitment to creating a respectful workplace for all employees.
Employer’s workplace harassment policy
The employer emphasised the importance of the Workplace Harassment Policy, particularly in the construction industry, where the enforcement of these policies is necessary to drive workplace culture change.
The company said that it had taken proactive steps to educate employees about the policy and to foster a culture of respect and inclusion.
The employer noted that women made up only a small percentage of the workforce in the construction industry and that creating a safe and welcoming environment was essential to attracting and retaining female talent.
The Workplace Harassment Policy was seen as a critical tool in achieving this goal and in promoting gender equality in the workplace.
The ‘sexist’ comment and investigation
Several employees who were present in the lunchroom at the time of the incident provided statements confirming they had heard the worker's comment. The employer relied on these statements in making the decision to terminate the worker.
However, the union representing the worker argued that the investigation was poorly conducted, as the employer failed to interview the worker or another relevant witness before deciding to terminate.
The union also noted that no notes were taken during the termination meeting, making it difficult to determine what was actually said.
The lack of a thorough investigation raised questions about the fairness of the employer's decision and whether all relevant information had been considered.
The union argued that the worker should have been given an opportunity to provide his account of the incident and to respond to the allegations against him.
The employer's defence
The employer maintained that the comment made by the worker was a clear violation of the Workplace Harassment Policy and that termination was justified given the context of the employer's health and safety obligations.
The employer added that the worker's comment perpetuated harmful stereotypes and contributed to a hostile work environment for female employees. It emphasised the importance of taking swift and decisive action to address such behaviour and to send a message that it would not be tolerated.
The employer also noted that the worker had failed to acknowledge the impact of his words and did not express remorse or offer an apology during the termination meeting. This lack of accountability was seen as further justification for the decision to terminate.
The union's arguments
The union acknowledged that discipline was likely warranted but argued that termination was an excessive response. They pointed out that the comment, while inappropriate, was not directed at anyone specifically and that the worker had no ill intent.
The union cited several arbitration cases where employees had made more egregious comments but were not terminated, with arbitrators opting for suspensions and educational measures instead.
They argued that the employer had a duty to consider progressive discipline and that termination should only be used as a last resort.
The union also criticised the employer's investigation, arguing that the failure to properly interview the worker and other witnesses led to gaps in the evidence presented at the hearing. They suggested that a more thorough investigation may have uncovered mitigating factors or context that could have influenced the disciplinary decision.
The arbitrator's decision
In reaching a decision, the arbitrator acknowledged the employer's efforts to create a safe and inclusive workplace. The arbitrator recognised the challenges faced by women in the construction sector and the importance of enforcing respectful workplace policies to promote cultural change.
However, the arbitrator ultimately found that termination was excessive in the circumstances. The arbitrator noted that the context of the statement was critical, finding that while the comment was "insensitive and inappropriate in a work environment," it did not rise to the level of the "sexist, racist, and vile comments" seen in other cases presented by the parties.
The arbitrator also found it "telling that the employees who testified neither expected nor wanted the [worker] to be fired," suggesting that other disciplinary measures could have achieved the same objectives without resorting to termination.
Other available disciplinary measures
"Referring to women as 'hoes' was a stupid thing to say full stop. It was insensitive and inappropriate in a work environment and especially with female co-workers in the same room. I find that as such the comment was worthy of discipline, however as it was not directed at anyone and on the spectrum of offensive comments covered in the jurisprudence it certainly does not rise to the level of the sort of sexist, racist and vile comments detailed in the authorities presented by the parties,” the decision said.
"There were any number of options available to the employer to assist in changing minds and culture without resorting to termination of the [worker]. For example, the same objective may have been achieved with a short suspension and an education component such as a requirement that the [worker] to meet with [his female co-workers] to understand the impact of his words or that he be required to publicly acknowledge his actions as a learning opportunity for other employees," the decision said.
"The need to change culture is critical, it does not however require the termination of an employee to achieve it," it added.
As the arbitrator noted, there are often alternative measures that can be taken to address inappropriate behaviour and promote cultural change without resorting to termination.
These may include suspensions, educational programs, mediation, and other restorative approaches that seek to address the underlying attitudes and behaviours that contribute to workplace harassment.
The arbitrator ultimately allowed the grievance, overturning the termination and substituting it with a three-day suspension. The worker was awarded compensation for lost wages and benefits, less the three-day suspension.
