Home Arbitration/Labour Relations Arbitrator overturns termination of Edmonton crane operator in workplace harassment case

Arbitrator overturns termination of Edmonton crane operator in workplace harassment case

by HR Law Canada

An arbitrator has overturned the dismissal of a crane operator at Sterling Crane in Edmonton who was fired for making a sexist comment in the workplace.

Arbitrator Mia Norrie found that while discipline was warranted, the employer’s decision to terminate was excessive given the circumstances.

What happened

The case centered around an incident on Aug.1, 2023, where the operator — S.C. — referred to women as “hos” in the lunchroom before the start of a shift. This comment was overheard by several employees, including two female crane operators who later reported feeling uncomfortable and disrespected by the comment.

Sterling Crane emphasized the importance of maintaining a respectful workplace, particularly in the male-dominated construction industry. The company highlighted its zero-tolerance policy for harassment, noting that enforcing such policies is crucial for driving workplace culture change.

The employer’s witnesses, including the female crane operators, testified to the negative impact of S.C.’s comments.

“When (he) made this sexist remark, other people laughed at it — which perpetuates the objectification of women,” said one of the women. “This is a dangerous culture to foster in the workplace because it makes me and other women feel like we don’t belong in these types of environments.”

Operator admitted making comment

S.C., represented by the International Union of Operating Engineers, Local 955, did not dispute making the comment but argued that the termination was a disproportionate response. The union asserted that the comment was part of a private conversation and not intended to offend anyone.

S.C. said he would have apologized immediately if he had known his comment caused offense.

Insufficient investigation

Arbitrator Norrie found that while the comment was inappropriate and warranted discipline, the employer’s investigation was insufficient.

She noted that the investigation lacked proper interviews and failed to gather comprehensive evidence.

“Beyond the issues with the investigation itself, the fact that no notes were taken by any of the management team of any of the discussions or meetings with employees is also highly problematic,” said Norrie. “In effect, this means that the employer is asking that I accept the employer’s witnesses recall over the grievor’s.”

Some praise for the employer

The arbitrator noted that, in this case, the employer “did much to be applauded.”

“In the past, employers have often been chastised for not reacting appropriately to address matters of workplace harassment,” said Norrie. “In the context of the modern workplace, it is no longer acceptable to ignore or sweep under the rugs instances of misconduct and this is reinforced by Health and Safety legislation which requires employers to prevent and act when allegations of harassment are made.”

She also recognized the efforts by Sterling Crane for supporting women in the construction industry, calling its goal of “ensuring safe and inclusive workspaces for women in a male dominated industry” worthy and and “one to be respected.”

Context important

Norrie also emphasized the importance of context, noting that the comment, while offensive, did not rise to the level of severe harassment seen in other cases. She suggested that the employer could have opted for alternative disciplinary actions, such as a short suspension combined with an educational component, to address the issue and support a respectful workplace culture.

“Referring to women as ‘hos’ was a stupid thing to say full stop,” the arbitrator said. “It was insensitive and inappropriate in a work environment and especially with female co-workers in the same room.”

It was definitely worthy of discipline, but the comment was not directed at anyone and — on the spectrum of offensive comments — did not rise to the level of other sexist, racist and vile comments found in other cases.

Written reprimand not enough

While S.C. sought to have dismissal replaced with a written reprimand, the arbitrator rejected that notion — citing the fact he did not acknowledge his wrongdoing from the start.

Instead, he made guesses as to who filed the complaint, justified his conduct, and referred to the situation as “bullshit.”

“This failure to take full accountability continued in the termination meeting and even at the hearing the grievor did not express remorse for the impact of his actions,” the arbitrator said. “Instead, he expressed that it was on the complainants as they failed to tell him they were offended. It is not clear to me that the grievor appreciates the true nature of his misconduct and as a result I can not agree that a written reprimand is an appropriate substitution.”

Instead, Norrie substituted the termination with a three-day suspension and ordered Sterling Crane to compensate S.C. for lost wages and benefits from the date of his dismissal to Sept. 17, 2023, when he began new employment.

Lessons from this ruling

  1. Thorough investigations: Employers must conduct comprehensive and timely investigations when addressing workplace harassment complaints to ensure all relevant evidence is considered.
  2. Proportional discipline: While maintaining a respectful workplace is critical, disciplinary actions should be proportionate to the offense and consider alternative corrective measures before resorting to termination.
  3. Context matters: Understanding the context and specific circumstances of any incident is crucial in determining appropriate disciplinary actions and ensuring fair treatment for all employees.

For more information, see Sterling Crane v International Union of Operating Engineers Local 955, 2024 CanLII 46844 (AB GAA).

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