Canadian Labour Reporter

the company access to the security footage, which recorded video but not audio. Mummery was seen standing at the bar with other employees when the finance manager ap- proached them. As she stood there, Mummery circled around her and came up to her from be- hind, placing his hands on her hips. She shook him off and walked towards the serving table, but Mummery walked up behind her again and swatted her but- tocks. Another video of the venue's parking lot a short time later showed Mummery and two other employees walking towards a car owned by a female employee. Mummery put a bottle or glass on the hood of the car — the fe- male employee reported finding circular marks on the hood later — and removed his shirt, pants, and shoes. He climbed onto the car's roof and slid over to the wind- shield, where he posed across the windshield. He continued to make several poses while his co-worker took photographs. After climbing down and put- ting on his clothes, Mummery "high-fived" another employee who came outside. Later, Mummery was caught on security footage laughing with two other men at the bar when he struck a pose. Later, he was seen talking to a few other employees while striking the same pose. Another video recorded after the dinner depicted Mummery at the bar again. He saw the fe- male employee whose car he had climbed up on. Mummery ex- tended his hand to her and when she took it, he raised it to his lips. He did it a second time before the female employee tapped his hand and pried it off with the help of an- other employee. Shortly thereafter, the female employee headed for the exit and Mummery placed his hands on his thighs, bent over, and thrust out his buttocks. After viewing the footage, Inno- phos launched an investigation. The female employee testified that Mummery's behaviour to- wards her was "creepy" and when she saw the video of him posing on her car, she felt humiliated. She testified she wouldn't be com- fortable seeing him at work any longer. Other employees at the event confirmed Mummery had men- tioned his posing on the car. Mummery initially denied he knew whose car it was, but later said he did know. He said at the time he thought it was "the funni- est thing ever," but then said "I've come to learn it's the most shame- ful, embarrassing thing I've ever done." He also initially said he did it as he was leaving for home and didn't talk to anyone afterwards. Mummery also said he hadn't targeted or intended to intimidate either woman and he was sorry that he might be responsible for the discontinuance of the fish fry. When told the female employee felt sexually harassed, Mummery said he didn't dispute "her inter- pretation" but if she hadn't seen the video "we wouldn't be here." Innophos terminated his em- ployment for sexual harassment. Employee's misconduct harassment: Arbitrator USW grieved the dismissal, argu- ing Mummery's conduct wasn't sexual in nature and he was just being good-natured and humor- ous. It also said Innophos shared in the responsibility for his con- duct by providing "excessive amounts of alcohol" at the event. Arbitrator Owen Gray found Mummery's initial denial that he didn't know whose car it was rang false, especially since he later ad- mitted to having known. This led Gray to believe Mummery "knew more about his motivation in choosing that car than he was pre- pared to reveal." Gray also found that since Mummery thought his actions were funny, it was likely he told others about them and this was borne out on the security camera footage. This proved Mummery lied when he said he didn't talk to anyone, said Gray. Mummery and USW charac- terized the event as fun, but arbi- trator Gray noted that just because some of the women tolerated his behaviour, it didn't mean it was welcome. Gray also found no evidence in- dicating Mummery suffered from a disabling addiction. Mummery chose to drink alcohol at the event and was likely well-versed in its ef- fects, said Gray. In addition, Mum- mery didn't say his actions were caused by alcohol or that he might not have done it if he hadn't been drinking. Arbitrator Gray found Mum- mery's actions were vexatious con- duct that Mummery ought to have known to be unwelcome — meet- ing the definition of harassment in the Ontario Human Rights Code and the company's harassment policy. In addition, he should have expected that posing naked on someone's car, whether he knew whose it was or not, was likely to be unwelcome by the car's owner. Though Mummery said he didn't intend for the female employee to see what he did, it was possible she might see the video or hear about it, said Gray. Gray also found that while Mummery said he was embar- rassed and ashamed, he didn't do anything to show he wouldn't commit similar misconduct in the future. He said he regretted that the female employee saw the video — not that he actually did it. "My sense is that (Mummery's) only true remorse is that his be- haviour was recorded by video cameras of which he was unaware, and that that had led to his dis- charge," said Gray. Though Mummery had a clean record and long service with Inno- phos, this didn't overcome the risk he would do something similar in the future and the fact he didn't seem to recognize his miscon- duct. Arbitrator Gray upheld the discharge and dismissed USW's grievance. For more information see: • Innophos Canada Inc. and United Steelworkers, Local 6304, 2016 CanLii 30878 (Ont. Arb.). 7 Canadian HR Reporter, a Thomson Reuters business 2016 CANADIAN LABOUR REPORTER NEWS < Arbitrator pg. 1 Worker caught via security footage lying on woman's car Photo: SF photo (Shutterstock) An employee at Innophos Canada, which operates a specialty phosphates operation in Port Maitland, Ont., was found to engage in vexatious conduct that he should have known was unwelcome.

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