Canadian Employment Law Today

September 25, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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6 | September 25, 2019 Cases and Trends Canadian HR Reporter, 2019 per cent women, and only one out of about 25 foremen was female. In the winter and spring seasons of 2017/2018, Mossman worked in roads maintenance and often reported directly to the female foreman, re- ferred to as AB. Mossman was friendly with AB at work, but he wasn't friends with her outside of work. e environment in the roads depart- ment involved joking and sometimes sexual banter. Since it was male-dominated, AB went along with the jokes and tolerated in- appropriate comments to fit in and be "one of the guys." She was also concerned that if she complained about sexualized jokes and comments to management, she would be la- belled a "rat" by other city employees. Over a period of three years reporting to AB as his district foreman, Mossman be- came interested in her romantically, as he knew she was separated from her husband — another city employee. He regularly ex- changed work-related texts with AB on their work cellphones, but when he started adding romantic comments and innuendos, it made AB uncomfortable. However, due to her con- cerns about the fallout from complaining or making things awkward with him, she either ignored the comments or laughed them off. In May 2017, Mossman texted AB to thank her for a service award and asked her out on a date. AB waited until the next day to respond, at which point she said she was doing well but didn't respond to his date suggestion. Increasingly inappropriate conduct Over time, Mossman's texts continued to get more sexually charged. AB continued to ignore them, but she sometimes briefly par- ticipated in brief sexual banter initiated by Mossman. In January 2018, Mossman had been off work with an injury to his leg. He sent AB a text with a photograph of an indi- vidual pointing to his ankle resting on a desk, but next to the ankle was what appeared to be a swollen penis. Mossman texted that it was proof he wasn't faking his injury and "the swelling has gone down a lot." AB knew the photograph was a meme taken from the in- ternet and not a picture of Mossman and she thought it was funny. ree months later, in April 2018, Moss- man sent AB a text with a picture of a flesh- toned object with a face on it. AB initially thought it was his thumb, but then realized it was probably his penis, which made her "horrified and disgusted." When Mossman followed up by asking if she liked his happy face, she didn't respond. On April 25, 2018, Mossman informed AB that there was some damage to his city truck. He showed her some pictures of the truck on his cellphone and, while she was look- ing at them, swiped to a picture of his erect penis. He laughed and said "oops," adding that he shouldn't have shown her that one. AB was "deeply offended and shocked," but a little later Mossman twice offered to send her a copy of the picture. e next morning he texted her again saying "can I send you 1 more pic," to which she didn't respond. AB didn't think Mossman had acciden- tally shown her the picture of his penis — a belief that was solidified when he offered to send it to her. She reported the incident to upper management, who launched an inves- tigation into the matter. Mossman was interviewed and said it had been a mistake — he accidentally swiped too far to the picture of his penis and AB wasn't supposed to have seen it. However, he ac- knowledged that in his later texts he was of- fering to send AB the picture. e city suspended Mossman without pay on April 25, 2018 pending the completion of the investigation. He was told the inves- tigation was confidential and he must not discuss anything related to the allegations with any city employee. However, five days into his suspension, Mossman contacted a roads maintenance foreman with whom he was friends — and who reported to AB — and told him he was shocked and felt AB had betrayed their friendship with her complaint to management. He also said his friend shouldn't trust AB. Management later interviewed AB about the incident, and she said the picture shocked and upset her. She also mentioned the other text message with inappropriate comments and innuendo that Mossman had been sending her for some time. Showing photo unintentional: worker At a second interview, Mossman reiterated that it had been a mistake showing AB the picture. He said he was aware of the city's respectful workplace policy — which set out examples of discriminatory and harassing behaviours including "unwelcome remarks, jokes, taunts, suggestions or speculations about a person's body, attire, sex life, etc., and displays of pornographic or other sexual materials in the form of pictures" — but he insisted he and AB were friends and he didn't feel remorseful. He mentioned that now he understood how it had affected her and wished he could apologize. Management went back to AB, who con- firmed they were not friends outside of work and, while she had found the knee injury pic- ture from January 2018 funny, she knew it was a joke from the internet and not actually a picture of Mossman. e city determined Mossman had violat- ed the respectful workplace policy — which stipulated inappropriate behaviour that is objectionable and unwelcome to an indi- vidual would be subjected to discipline up to termination of employment — and code of conduct and failed to appreciate the inap- propriateness of his behaviour. It terminated his employment effective May 8, 2018. e union grieved the dismissal in June 2018 and Mossman prepared a letter of apol- ogy to AB on the suggestion of the city's di- rector of transportation. e arbitrator found that Mossman's "lengthy series of flirtatious comments" to- ward AB were initially from his romantic interest, but once she "pointedly ignored his request for a date," he should have known his overtures were unwelcome. However, he continued to send her texts with sexual in- nuendos — often during work hours to AB's work cellphone — which constituted sexual harassment and a violation of the city's re- spectful workplace policy, said the arbitrator. e arbitrator also found that, though AB initially thought the "happy-face" picture was of a thumb, she later realized it was a penis. Sending pornographic pictures dur- ing work hours on a city cellphone was also disciplinable conduct. Combined with his showing AB another picture of his penis while showing her his truck pictures and then offering to send it to her, it was "unwel- come and offensive conduct" that also con- stituted sexual harassment and violated the respectful workplace policy — a policy that described harassing behaviours, so Moss- man was aware of what was inappropriate. e arbitrator noted that AB was in a vulnerable position as a woman in a male- dominated workplace and was worried she would face repercussions if she complained of sexual harassment. Mossman proved these concerns to be true when he contacted a co-worker who reported to AB and warned him not to trust her. is was an attempt to undermine AB's authority at work and also undermined Mossman's own acceptance of responsibility — not to mention contrary to the instructions he had been given to not dis- cuss matters related to the allegations during the investigation, said the arbitrator. Since Mossman had 30 years of discipline- free service with the city, a lesser amount of discipline might have been appropriate if his showing of the photograph to AB in April 2018 was truly accidental, said the arbitrator. However, it was clearly intentional, since he aggravated the situation by offering to send her the picture later. Combined with Moss- man's history of inappropriate texting of the previous couple of years and his attempt to undermine her during the city's investiga- tion, his misconduct was deserving of termi- nation, said the arbitrator in dismissing the grievance and upholding the dismissal. See Calgary (City) and CUPE, Local 37 (Moss- man), Re (May 30, 2019), J.T. Casey – Arb. (Alta. Arb.). « from PERSISTENT on page 1 Worker twice offered to send supervisor copy of offending photo

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