Canadian Employment Law Today

December 15, 2021

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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Canadian HR Reporter, 2021 20-day suspension was appropriate for the worker. On Dec. 19, Hydro Ottawa suspended the worker for 20 days for making "unwanted sexual remarks and gestures," threatening his co-worker, and failing to be forthright in the investigation, contrary to the code of conduct. The union grieved the suspension as too severe. The arbitrator found that the worker's story "lacks plausibility in a number of ar - eas." In both his interview and testimony, his approach was that he had done nothing wrong, despite the fact that the video foot- age showed that he didn't stay calm as he had claimed. In addition, the co-worker's version of events was consistent from when he ini- tially reported it to the hearing. The arbitra- tor determined that the incidents happened as reported. The arbitrator noted that the worker's comments were "offensive and unwanted on any objective standard" and there was no evidence that the co-worker had discussed his relationship with his wife with the worker. All indications were that the worker intro - duced the subject and then persisted with it even when his co-worker didn't engage in it, compounding it by making a vulgar gesture and following the co-worker after he became upset. The arbitrator found that the worker, like all employees, was familiar with the code of conduct and he should have known his con - duct was inappropriate. The two incidents also meant it wasn't isolated misconduct and, although he expressed remorse to the manager, he clarified later that he was re - morseful not for his conduct, but for how the co-worker took it. Despite the fact that the worker was a long- service employee with a clean disciplinary record, the arbitrator upheld the 20-day sus - pension. "While I am not aware of a case where an arbitrator imposed a more severe penalty than the penalty chosen by management, and I am not about to embark on that exer - cise in this case, the [worker's] conduct and testimony leads to the conclusion that a 20- day suspension may not have been enough to make clear to the [worker] that he must change his ways," said the arbitrator. "Reduc - ing the penalty in this case would send the wrong message to the [worker] and would risk emboldening his behaviour in the fu- ture." For more information, see: • IBEW, Local 636 and Hydro Ottawa (Boyd), Re, 2021 CarswellOnt 14368 (Ont. Arb.). December 15, 2021 | Canadian Employment Law Today CREDIT: RAINSTAR iSTOCK The worker claimed that he didn't understand why his co-worker was so upset.

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