Canadian Labour Reporter

February 13, 2017

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7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS phone number and invited her to an after party, but she declined. A Christmas party for Bramp- ton firefighters was scheduled for Dec. 18 — the first social event for Brampton firefighters since the golf tournament. At station 209, the female firefighter acknowl- edged it would be the first time seeing Swann since the golf tour- nament and she said she would wear something conservative to avoid a similar situation aris- ing. Some of the crew at station 209 suggested that she tell Swann that she was being transferred to station 206 — the station where Swann and Hamilton worked — as a joke to see if he "squirms." The female firefighter agreed it would be "kind of funny." On Dec. 18, Hamilton arrived at the restaurant where the party was being held. He gave another firefighter $40 and told him to keep his glass full all night. Many of the firefighters from station 209 arrived a little later and soon the conversation turned to the joke that the female firefighter should tell Swann she was being trans- ferred. They all agreed they would participate in it if she went ahead with it. Joking became inappropriate Around 8 p.m., Hamilton had a conversation with the female firefighter. She said she might be transferred to station 206, and Hamilton reacted negatively. He said if she was transferred to sta- tion 206, she would end up preg- nant within the first week. She was talking to someone else before leaving when Hamilton ap- proached her and said "There is no way you are coming to station 206." The female firefighter asked why and Hamilton said he knew she was "f---ing everyone in the fire department" and he didn't want that under his roof. Another captain with whom Hamilton had come to the party, stepped in and pulled Hamilton away, apologizing to the female firefighter for Hamilton acting like "an idiot" and asking if she was OK. The female firefighter went to work the next morning and dis- cussed the events of the party with her crew at station 209. She told her captain that Hamilton had said if she went to station 206 she would be "impregnated within nine months, raped and she was f---ing her way around the shift or department." Hamilton denied making the comments and said it was just fire- fighter gossip and "joking around." He spoke with the captain at sta- tion 209 and claimed he thought the captain was playing a prank on him. He then said if the female firefighter was upset, he would apologize. He said it was a joke and he didn't use the word "rape," and things were getting "blown out of proportion." The district chief asked the fe- male firefighter to write a state- ment. Nothing more was done until the city's human resources department received a tip on Jan. 5, 2015. An investigation was launched and both Hamilton and the female firefighter were inter- viewed, as were several witnesses from the Christmas party. Hamil- ton maintained that he believed it was a prank and he never said the word "rape." On Jan. 7, 2015, Hamilton sent an email to the deputy chief ex- pressing sorrow and acknowledg- ing that his comments weren't ap- propriate. He reiterated his belief that it was a prank, adding that he didn't intend to make his fellow firefighter feel out of place. The next day, he emailed the female firefighter to "truly apologize" for his comments and explain that he thought it was a set-up. The investigation report in- dicated Hamilton had violated the Ontario Human Rights code and several city policies dealing with conduct, workplace violence and human rights. It determined Hamilton had threatened rape and recommended termination. Hamilton's employment was ter- minated on Jan. 22. The Brampton Professional Firefighters' Association argued termination was excessive and grieved the dismissal. Context of comments Arbitrator John Stout found that given the discussions in the female firefighter's station about a prank — and the fact it didn't make sense for her to start a conversation with Hamilton with a statement that she might be coming to sta- tion 206 when no such decision had been made — it was likely that the female firefighter was at least initially "engaging in some light- hearted banter with (Hamilton) at the Christmas party." Stout also found that the female fighter's claim that Hamilton said "rape" to her in the second con- versation was not reliable, since no one other than her apparently heard it. This gave credence to Hamilton's denial of using the word, which didn't quite fit with the theme of his other comments, said Stout. "(Hamilton's) comments were more directed towards (the fe- male firefighter) being involved socially or sexually with other firefighters, and not directed at (her) being assaulted," said Stout. "While it is true (Hamilton) clear- ly mentioned (the female fire- fighter) getting pregnant, he was also talking about rumour and gossip surrounding her relation- ship with other firefighters." Stout noted that it was possible Hamilton was too drunk to re- member saying the word, but even if he did, the female firefighter never said she felt threatened. Stout agreed that Hamilton vio- lated the human rights code and city policies, but he didn't threat- en the female firefighter and it was a single incident by someone with no previous discipline over 14 years with the city. The city was ordered to re- instate Hamilton with a three- month unpaid suspension in- stead, with compensation for lost wages and benefits. As additional discipline, Stout determined Hamilton should be demoted from captain to first-class fire- fighter and he was required to participate in sensitivity and anti- harassment training. For more information see: • Brampton (City) and Brampton Professional Firefighters Assn. (IAFF, Local 1068) (Hamilton), Re, 2016 CarswellOnt 19791 (Ont. Arb.). < Arbitrator pg. 1 'Light-hearted banter' not the same as threatening rape Photo: Tyler Olson (Shutterstock)

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