Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: HARASSMENT Arbitrator extinguishes firing for inappropriate comments Firefighter denied threatening rape and evidence showed comments were part of joking common among firefighters BY JEFFREY R. SMITH A firefighter who was dismissed for inappropriate comments to a female co-worker at a party has been reinstated with a suspen- sion and a demotion by an arbitrator. Ryan Hamilton was a firefighter for the City of Brampton, Ont. Hired in 2001, he became an acting captain in 2009 and a full captain at Brampton's station 206 in July 2013. His wife was also a firefighter, sta- tioned in Toronto. Pranks and practical jokes were frequent in the Brampton fire service, and the cul- ture at the stations often featured what could be considered juvenile and dark hu- mour, as well as sexist behaviour by some individuals. One example was an annual show for the fundraising firefighter cal- endar, where firefighters danced on stage, "dropped their pants" and judged to see who should appear in the calendar. In September 2014, a golf tournament organized by another Brampton firefighter was held in which Hamilton participated. At one point, Hamilton's foursome came to the tee of a hole where a female fire- fighter from the city's station 209 was sell- ing tickets. Hamilton joked with the female firefighter and one of his colleagues in the foursome, Kirk Swann, took a liking to her. Swann obtained the woman's phone num- ber and invited her to an after party, but she declined. Swann texted the female firefighter the next day to apologize for being too for- ward and there was some joking at her sta- tion because he didn't know she was also a Brampton firefighter. A few months passed and a Christmas party was scheduled for Dec. 18 — the first social event for Brampton firefighters since the golf tournament. At station 209, the fe- male firefighter acknowledged it would be the first time seeing Swann since the golf tournament and she said she would wear something conservative to avoid a similar situation arising. Some of the crew at sta- tion 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." e female firefighter agreed it would be "kind of funny." On Dec. 18, Hamilton arrived at the restaurant where the party was being held around 5:30 p.m. and starting drinking beer. He gave another firefighter $40 and told him to keep his glass full all night. 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 transferred. ey all agreed they would participate in it if she went ahead with it. Joking became inappropriate Around 8 p.m., Hamilton had a conversa- tion with the female firefighter. She casu- ally mentioned that she had heard she was going to be transferred to station 206, and Hamilton reacted negatively. He said "no you are not" and said it wouldn't be a good idea. He then said if she was transferred to station 206, she would end up pregnant within the first week and wouldn't know who the father was. e female firefighter joked that she had "HR on speed dial," to which Hamil- ton responded "did you just bust out the HR comment?" Another firefighter soon interrupted to tell Hamilton he was being inappropriate. e female firefighter then turned around to talk to others. About one hour later, the female fire- fighter decided to go home. She was talking to someone else before leaving when Ham- ilton approached her and said "there is no way you are coming to station 206." e 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 at station 206. Accord- ing to her, Hamilton also made a comment about her having "boy toys" all over the city. Another captain, with whom Hamil- ton 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 okay. e female firefighter then left the party and the captain drove Hamilton home. He asked Hamilton about his comments and Hamilton replied, "You know how it is. If she comes down to 206 she will be off nine months." e captain told Hamilton his comments were inappropriate and felt he had too much to drink. e female firefighter went to work the next morning and discussed 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 "im- pregnated within nine months, raped and she was f---ing her way around the shift or department." e captain told his crew to keep things "under their hats" while he called Hamilton's station, where he told the captain who had driven Hamilton home about the comments. Hamilton denied making the comments and said it was just firefighter gossip and "joking around." He spoke with the captain at station 209 and claimed he thought the captain was playing a prank on him. He then said if the female firefighter was up- set, he would apologize, but he was told she was fine and an apology wasn't necessary. He said it was a joke, he didn't use the word "rape," and things were getting "blown out of proportion." e district chief asked the female fire- fighter to write a statement. e statement included her account of both conversa- tions with Hamilton and the comments about her getting pregnant and raped if she was transferred to station 206. 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 interviewed, as were several witnesses from the Christmas party. Ham- ilton maintained that he believed it was a prank and he never said the word "rape." IT CAN be difficult for women to make headway in male-dominated professions such as firefighting. Employers of such professions need to be on the alert for instances of sexual harassment and discrimination. But in the case of potentially harassing comments, sometimes the context and nature of the workplace culture can mitigate the culpability of an employee who makes such comments — but not necessarily excuse them. BACKGROUND

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