Home Opinion/Commentary Ruling highlights HR challenges in balancing termination, discipline in zero-tolerance era

Ruling highlights HR challenges in balancing termination, discipline in zero-tolerance era

by Todd Humber

What would you do if one of your workers, in the lunchroom before the start of his shift, referred to women as “hos”?

And what if your workplace was in the construction sector, and you were trying to foster a climate and culture that made women feel welcome? And what if that comment was made in earshot of female employees?

That situation presented itself at Sterling Crane in Edmonton last year, and the company decided to fire the worker — who was unionized — for cause, citing its zero-tolerance policy for harassment.

That termination was grieved, and an arbitrator found dismissal to be too extreme in this case, substituting a three-day suspension instead.

The ruling shows just how tough it can be for HR and employers to define the line between conduct that justifies termination versus discipline, even in an era of zero tolerance and increasing obligations on employers to maintain respectful workplaces.

What happened

On Aug. 1, 2023, the crane operator made the offensive remark which was overheard by several employees, including two female crane operators.

“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.”

That comment gets to the crux of the matter. Casual sexism can be insidious and one off-hand comment in the lunchroom can undermine years of hard work to create an inclusive culture.

Those words are also like nails on a chalkboard to HR professionals. Especially in a sector like construction, which is fighting hard to create better cultures to attract talent in an era of chronic labour shortages.

Much to be applauded by employer’s approach

The arbitrator in this ruling spent a lot of time praising Sterling Crane, saying it did much in this case to be “applauded.”

“In the past, employers have often been chastised for not reacting appropriately to address matters of workplace harassment,” said arbitrator Mia Norrie in the ruling. “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.”

The company’s focus on training, education, and taking swift action on complaints was “wholly appropriate,” she said.

Norrie also recognized the efforts of Sterling Crane to support the women that work for them and in the construction industry as a whole.

“Sterling’s stated objectives around ensuring safe and inclusive workspaces for women in a male dominated industry is a worthy goal and one to be respected,” she said. “It is difficult to be too critical of an employer that takes action to ensure these objectives.”

Where the case fell apart

But the arbitrator took issue with the employer’s lack of a proper investigation, noting that the worker should have been given the chance to provide his version of what happened and to answer the complaints made against him.

Norrie also noted that no notes were taken by anyone on the management team about the discussions around the incident or meetings with employees, calling it “highly problematic.” Norrie also said the employees who testified neither wanted nor expected him to be fired, noting that the employer decided to terminate him to “send a message.”

Discipline was certainly warranted, especially given the fact he didn’t acknowledge his wrongdoing from the start. He failed to take responsibility for what he said, choosing instead to make guesses about who complained, justifying his conduct, and calling the entire situation “bullshit.”

Therefore, a written reprimand wasn’t enough, the arbitrator ruled — and a three-day suspension was substituted. The worker in this case had found another job, so Sterling Crane was ordered to pay him all lost wages and benefits from the time of his termination until the date he started his new position.

Closing thoughts

There is no defending the worker in this case. Referring to women as “hos” is something that should be left to the dustbin of history. But it also shows that, even with all the focus and legislative burdens, there remain few slam-dunk cases for termination.

A proper investigation is crucial, and a step that can seldom (if ever) be skipped. And the level of inappropriate behaviour matters. In this case, arbitrator Norrie agreed the comment was “a stupid thing to say, full stop.”

But it was not a comment that was directed at anyone specifically and, on the spectrum of offensive language, it fell short of the “sexist, racist and vile comments” seen in other cases, she said.

This case should not be viewed as a green light for casual sexism in the workplace. It has a corrosive effect on workplace culture. What it does provide, though, is some guidance on how to respond and a concrete reminder of the critical importance of a well-handled workplace investigation.

For more information on this case, see the coverage in HR Law Canada at https://hrlawcanada.com/2024/05/arbitrator-overturns-termination-of-edmonton-crane-operator-in-workplace-harassment-case/

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