Canadian Employment Law Today

Canadian EmploymEnt law today published by Canadian hr reporter, a thomson reuters business 2014 3 Continued on page 7 School caretaker suspended for inappropriate comments, poor work Worker denied all allegations but showed little credibility or remorse | By Jeffrey r. SMith | an ontaRio School BoaRD had just cause to dismiss an employee after com- plaints of inappropriate comments to a staff member and students, an arbitrator has ruled. The employee was a relief caretaker for the Niagara District School Board. He was assigned to different schools to fill in wherever there was a vacancy due to vacations, illness or transfers. He was hired in 2000. In late January 2012, the caretaker was assigned to a particular school for one month. During that time, there were no complaints about the quality of his work or his behaviour. However, in early April, when staff at the school learned he was being considered for another as- signment there, complaints were made to his supervisor. The complaints were related to a sec- retary at the school who only knew the caretaker in passing. She described an incident where the caretaker came to the office and got down on the floor to dust the legs of her chair, while she was still sitting in it. The secretary said this had made her uncomfortable, but she didn't say anything at the time. The caretaker then said to her, "If peo- ple didn't know any better, they'd think I was servicing you." The secretary said she was shocked by the comment, but said nothing to him, simply staring back at him in si- lence. The secretary didn't report the inci- dent, as it was the first time something like that had happened and the caretak- er had seemed fine to her before that. However, on another occasion a little later, the caretaker came to the office to secure loose wires around and under the secretary's desk. Before she could roll back her chair and give him access to the space under the desk, he got down under her desk and made the same com- ment as before. This time, the secretary told him he was making her uncomfortable and asked him not to do it again. According to the secretary, the caretaker didn't re- spond. The secretary told another staff mem- ber about the incident after the caretaker had completed his posting at the school. Another caretaker overheard and report- ed it to the area operations supervisor. The caretaker denied he made the comments attributed to him, insisting he would "never" say anything like that. He said he recalled going to the office to dust the chair legs and secure the wires under the secretary's desk, but said the secretary wasn't seated on those occa- sions and she didn't say anything about being uncomfortable. Questionable comments continued A former teacher who volunteered at the same school also reported an inci- dent near the end of the caretaker's stint in February 2012 involving three female Grade 6 students. The volunteer and the girls were sort- ing recycling material when the caretak- er approached them and showed them a picture of his house on his cellphone. He described his backyard swimming pool and talked about how much his five- year-old daughter enjoyed it. He also mentioned he had a 32-year- old daughter, which caused one of the students to ask how old he was. The caretaker responded that he had gotten a girl pregnant when he was a teenag- er and that "accidents do happen, you know." The volunteer didn't think the conver- sation was appropriate and it gave the students the impression that getting a young girl pregnant was normal, so she sent the students elsewhere. The volunteer reported the conversa- tion to the school principal. The care- taker acknowledged he spoke to the three girls and showed them pictures of his house and young daughter, but he denied saying anything about his older daughter, who he claimed was actually 29 and had been planned with his high- school girlfriend, who later became his wife. In March 2012, the caretaker was as- signed a split shift during which he worked at two schools in one day. On March 26, his supervisor stopped at the first school shortly before 6 p.m., ex- pecting to find the caretaker since he was supposed to be there until 7 p.m. However, the caretaker was nowhere to be found and the supervisor noticed some of the desks weren't washed, sev- eral chalk ledges weren't properly wiped and the hall floors weren't clean enough. He went to the second school and found the caretaker eating lunch with his girl- friend in the parking lot. The supervisor mentioned the prob- lems with the first school and that the caretaker was supposed to be at the first school until 7 p.m. The conversation became heated as the caretaker expressed frustration that he couldn't get the work done in the time allotted without missing his breaks. He also later said the supervisor only told him there were "a few chalk ledges" that hadn't been cleaned properly, with no mention of any other problems, though he acknowledged things became a little heated. incidents add up to suspension The school board considered the com- plaints against the caretaker of sexual harassment and inappropriate com- ments, along with the poor performance issues and suspended the caretaker for five days without pay. The caretaker continued to deny the incidents and grieved the suspension. The arbitrator found the caretaker's versions of the incidents weren't cred- ible. The secretary's reluctance to report anything was typical of someone who has been harassed and there was no rea- son for her to make it up. The arbitrator was also suspicious of the caretaker's ability to remember spe- cifics about the routine tasks he was performing on those occasions after many months, without something hap- pening to make it memorable. When the caretaker made the same comment to the secretary a second time, she told him it made her uncomfortable and he should stop. according to the secretary, the worker didn't respond.

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