Canadian Labour Reporter

September 21, 2020

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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September 21, 2020 was also a long-time employee — complained that Elliott had whis- tled at her with "a wolf-whistle, like when you see a pretty lady" as he drove by in a company vehicle. It had surprised her since she knew that Elliott had been spoken to about this kind of behaviour. It also made her think that she wasn't respected as an equal, wondering what people were say- ing behind her back. The employee recognized that the incident could be seen as minor, but she said "it's insulting to women who want to be treat- ed with respect and are serious about pursuing a male-dominat- ed position/role." She said she was thinking of withdrawing from the program partly because of behav- iour like Elliott's. Management called a meeting with Elliott on Jan. 16. He didn't know the purpose of the meeting until they asked him if he remem- bered whistling at a student. He claimed that he had been giving a tour to the new onsite student administrator — who had been warned by her predecessor to "nip it in the bud" if Elliott said anything inappropriate — when he saw the employee coming out of the student lounge. He thought that instead of using the vehicle's horn to warn her that the vehicle was coming, he would whistle at her. He claimed he made a whistle like a chickadee or for someone calling chickens, but another instructor who was with him looked at him and said his name. At that point, he realized that it appeared like he was "whistling at women." He acknowledged that he should have used the horn and said he felt "horrible, sorry if I'd offended anyone." He demon- strated the whistle for manage- ment. Elliott said he recalled receiv- ing sexual harassment training, but it was "vague" and "chaotic." He also said he was aware of the policy posted around the work- site, but said: "I likely didn't read them." He acknowledged that he sometimes told "borderline" jokes, but "never anything derog- atory." Elliott was sent home while management conducted an inves- tigation. The employee who was with Elliott at the time reported that Elliott had made a "catcall whistle" that didn't sound like the one Elliott had demonstrated in the investigation meeting. Interior terminated Elliott's employment on Jan. 20 for sexual- ly harassing the female student. The arbitrator found that the other employee's description of the whistle was more credible, as he had no motive for falsely maligning Elliott and the female student's reaction was consistent with that type of whistle. As a re- sult, the whistle was "of a sexual nature" and interfered with the student's confidence, said the arbitrator. The arbitrator noted that as an instructor, Elliott occupied a position of trust with students and was largely unsupervised. His behaviour betrayed that trust and potentially harmed Interior's reputation as a training site. In addition, the arbitrator found that Elliott displayed no remorse for the whistling incident or any of his previous inappropriate con- duct towards women. The arbitrator upheld the termination and dismissed the grievance. Reference: Interior Heavy Equipment Operator School and IUOE, Local 115 (Elliot). Joanie McEwen — arbitrator. Michael Hansen for employer. Andrew Buchanan for employee. Aug. 17, 2020. 2020 CarswellBC 2163 Female student felt insulted, demeaned by 'whistling' Driver's test administrator termination justified Customer service agents (CSAs) for Serco receive manda- tory training on customer care skills, including decreasing cus- tomer complaints and creating a safe work environment. CSAs must follow a code of ethics, treat everyone with re- spect and dignity and avoid confrontation. There are also protocols for dealing with cus- tomers who violate testing rules such as using cellphones or other aides. On June 28, 2019, a worker employed as a CSA saw a cus- tomer in the test room on his cell- phone. She told the customer he couldn't have it in the room, but the customer said it was his work phone and he couldn't turn it off. The worker told him to remove his phone from the desk and the customer called her an expletive, threatened her and invited her to come outside. The CSA then slapped him on the back of the shoulder, re- moved her name tag, and told the customer she was going to get changed and meet him outside. At that point, another Serco employee entered and asked the customer to leave the room. The employee noted that the worker was verbally aggressive and the customer said he was rude to her, but he asked her to go out- side because she hit him. The customer added: "I would never have gone outside because she is a woman." Serco looked into the incident and talked to other employees who had witnessed it. One agreed that the customer had called the worker an expletive and threat- ened her and the CSA "smacked his left shoulder." Two other em- ployees corroborated the cus- tomer's threat to fight and the worker's slap. Serco had video surveillance footage showing the worker en- gaging in a verbal altercation with the customer and then striking the customer on his left shoulder with her open right hand. She then walked away from him and removed her name tag. Serco interviewed the worker and she admitted that she had handled the situation wrong, but also felt that she shouldn't be disciplined because she had felt scared and "it was my duty to de- fend myself." On July 10, Serco terminated the worker's employment for physically assaulting a customer, breaching the code of conduct, and putting the company at risk of violating its agreement with the Ministry of Transportation. The worker — who had two years of service and was 52 years old — filed a grievance, claim- ing Serco violated the collective agreement's requirement of just cause for dismissal. The union argued that while the worker had a "bad reaction," she didn't take things further and was remorseful. The union also pointed out that the worker had been a "good employee" with a clear disciplinary record. The arbitrator found that the surveillance footage and witness reports indicated that she had physically assaulted a customer who hadn't provoked her other than breaking the rule against cellphones. Instead of respectfully ap- proaching the customer and try- ing to de-escalate the situation as per procedure, she was aggressive and confrontational, said the ar- bitrator. The arbitrator also found that the worker tried to justify her behaviour in the interview and report rather than expressing re- morse — although her conduct had compromised the safety of herself, the customer, coworkers and other customers as well as damaged Serco's reputation in the eyes of customers and the minis- try. The arbitrator dismissed the grievance and upheld the termi- nation. Reference: Serco Canada and USW, Local 9511. Gordon Luborsky — arbitrator. Irv Kleiner, Shreya Patel for employer. Frank Arcuri for employee. Aug. 31, 2020. 2020 CarswellOnt 12456

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