Canadian Employment Law Today

On Jan. 7, 2015, Hamilton sent an email to the deputy chief expressing sorrow and acknowledging that his comments weren't appropriate. He reiterated his belief that it was a prank, adding that he didn't intend to make his fellow firefighter feel out of place and that his wife was a firefighter. e next day, he emailed the female firefighter to "truly apologize" for his comments and explain that he thought it was a set-up and that was the context in which he made them. He acknowledged that she had been centred out and for that he was "very sorry." e investigation report indicated Ham- ilton had violated the Ontario Human Rights code and several city policies deal- ing with conduct, workplace violence, and human rights. It determined Hamilton had threatened rape — "the most egregious act of violence that could befall a woman" — and recommended termination. e chief supported the recommendation and the deputy chief didn't believe Hamilton's apol- ogy was sincere, so Hamilton's employ- ment was terminated on Jan. 22. Hamilton acknowledged some miscon- duct, but the union argued termination was excessive given the circumstances. Context of comments e arbitrator found that given the dis- cussions in the female firefighter's station about a prank — confirmed by several firefighters — 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 station 206 when no such de- cision had been made, it was likely that the female firefighter was at least initially "en- gaging in some light-hearted banter with (Hamilton) at the Christmas party." e arbitrator also found that the female firefighter's claim that Hamilton said "rape" to her in the second conversation was not reliable, since no one other than her report- edly heard it, while there were several wit- nesses to the rest of the conversation who all confirmed the other comments. is gave credence to Hamilton's adamant de- nial of using the word, which didn't quite fit with the theme of his other comments, said the arbitrator. "(Hamilton's) comments were more di- rected towards (the female firefighter) be- ing involved socially or sexually with other firefighters, and not directed at (her) being assaulted," said the arbitrator. "While it is true (Hamilton) clearly mentioned (the fe- male firefighter) getting pregnant, he was also talking about rumour and gossip sur- rounding her relationship with other fire- fighters." e arbitrator noted that it was possible Hamilton said the word and was too drunk to remember, but even if he did, the female firefighter never indicated she actually felt threatened. And when Hamilton was told of his comments the next day, he was shocked and thought it was a joke. e arbitrator agreed that Hamilton vio- lated the human rights code and city poli- cies with his conduct, but he didn't threaten the female firefighter and it was a single incident by someone with no previous dis- cipline over 14 years with the city. e city was ordered to reinstate Hamilton with a three-month unpaid suspension instead, with compensation for lost wages and ben- efits from the end of the suspension peri- od. As additional discipline, the arbitrator determined Hamilton should be demoted from captain to first-class firefighter, as his misconduct "does not meet the appropri- ate standards expected of a captain," and required to participate in sensitivity and anti-harassment training. For more information see: • Brampton (City) and Brampton Profes- sional Firefighters Assn. (IAFF, Local 1068) (Hamilton), Re, 2016 CarswellOnt 19791 (Ont. Arb.). Canadian HR Reporter, a Thomson Reuters business 2017 March 1, 2017 | Canadian Employment Law Today ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www. employmentlawtoday.com for more information. CREDIT: DIEGO CERVO/SHUTTERSTOCK

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