Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $308 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com Sales Manager: Paul Burton Email: paul.burton@thomsonreuters.com Phone: (416) 649-9928 Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was less severe discipline warranted for the worker's harassing behaviour? OR Did the sexual harassment provide just cause for dismsisal? IF YOU SAID less severe discipline was warranted, you're right. e arbitrator not- ed that Tembec had an obligation under the Ontario Occupational Health and Safety Act to provide a working environment that was free of harassment and Hardy's behav- iour "undoubtedly met the defi nition of 'sexual harassment'." e arbitrator found that sexual touching was serious miscon- duct, and Tembec had reason for concern because Hardy didn't apologize to the co- worker and didn't display remorse for his ac- tions. ough Hardy attended counselling, there was no evidence that he recognized the nature of his misconduct or wouldn't repeat it and thereby threaten the safety of other female employees if he was reinstated, the arbitrator said. e arbitrator also noted that the female co-worker was new to the sawmill and didn't want to "rock the boat," which likely infl u- enced her decision not to report the torn jeans incident even though it upset her. is failure to report didn't detract from the un- acceptable nature of Hardy's misconduct, though it may indicate the co-worker didn't think it was serious, the arbitrator said. e arbitrator also found that poking a co-worker with a gloved hand was "at the very low end of the catalogue of possible sexual assaults," which is perhaps why the co-worker didn't think it was worth report- ing to management. In addition, Hardy had a discipline-free record before the incident, which indicated he could be trusted to be- have if returned to the workplace. e arbitrator ordered Tembec to rein- state Hardy with an unpaid suspension on his record since his termination to serve as discipline. See Tembec Enterprises Inc. and USW (Hardy), Re, 2017 CarswellOnt 19959 (Ont. Arb.). Sawmill worker can't keep his fi nger to himself THIS INSTALMENT of You Make the Call features a worker who was fi red for sexually harassing a co-worker. Jean-Louis Hardy, 56, was a general la- bourer at a sawmill operated by Tembec En- terprises in Hearst, Ont. He initially worked at the sawmill for another, related employer but offi cially became an employee of Tem- bec in August 2013. He had no prior disci- pline on his record. Hardy was working in the sawmill on Sept. 6, 2017, with a 19-year-old female co-worker who was new. As the co-worker passed by him, Hardy told her there was a rip at the back of her jeans just below her buttocks. e rip exposed her underwear and skin and Hardy poked a fi nger of his gloved hand through the hole, touching the co-worker's skin. He also made a comment that she was wearing "pretty pink" underwear. e co- worker immediately left to change her jeans. e co-worker didn't report the incident at that time. However, she regularly rode to and from work with a supervisor at the sawmill and she mentioned the torn jeans incident to him, as well as a Facebook con- versation she had had with Hardy a few days earlier that had become sexually charged. e supervisor also didn't report the inci- dent to management. One week later, the superintendent of hu- man resources learned about it, but the su- pervisor who rode to work with the female co-worker told him the co-worker didn't want to make a complaint. However, the superintendent of HR informed the produc- tion superintendent about it and met with Hardy and the co-worker separately. e co-worker said that her parents had been worried by the Facebook conversation with Hardy and had called the police, but they didn't charge him because he hadn't done enough that would result in a convic- tion. e co-worker said the torn jeans in- cident upset her, but she felt she could still work with Hardy. Hardy admitted to the HR superintendent that he had poked the co-worker in the but- tocks, but didn't grab her and it was "a joke." He said there had been "some stuff " on Face- book, but because it had occurred away from the sawmill, it didn't concern the company. He acknowledged that maybe he shouldn't have touched the co-worker, but "if this young girl can't take it, she has no business being here…If she's going to work with men, she has to expect that." Both Hardy and the co-worker were told to go home while corporate labour rela- tions, corporate HR, and the site manager were consulted. ey decided to terminate Hardy's employment on Sept. 19. When in- formed of this, Hardy reiterated that he had just poked the co-worker with his fi nger and not grabbed her. After his dismissal, Hardy went to coun- selling to "help me manage my emotions" and to learn how about sexual harassment and respectful communications. He also started suff ering from depression and anxi- ety and claimed to have suicidal thoughts. e union grieved the dismissal, arguing ter- mination was too harsh and Tembec didn't follow the principle of progressive discipline that was part of the company's sexual harass- ment policy, which had a stated goal of cor- recting rather than punishing unacceptable behaviour. He also said he didn't remember taking sexual harassment training at work, though Tembec had a document he had signed certifying he had taken such training.

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