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.
