Grievor was Guilty of Workplace Harassment, not Victim of Discrimination

In a recent decision arising out of the television production industry, an arbitrator has upheld the discipline imposed on a high seniority grievor for workplace harassment.

More particularly, the employer had refused to accept the grievor as an employee referred from the Union’s hiring hall on any future productions and the arbitrator found this was proper, rejecting the Union’s assertions that the discipline was without just cause and constituted discrimination contrary to the Ontario Human Rights Code.

The key facts stem from a conflict that developed between the grievor, who worked in the wardrobe department, and a background actor, who ended up filing a harassment complaint against the grievor. The grievor is black. The complainant is white.

The complainant alleged that the grievor had refused to assist him, as was his duty, and also repeatedly harassed him throughout the course of a day that they were both on the same production. A review of the arbitrator’s decision shows that the harassment complaint involved serious allegations, including that the grievor had called the complainant a racist and stated that “white people were racist motherfuckers”, who “were raping children ages 3 to 9”.

The grievor denied these allegations.

The employer hired a professional harassment investigator who determined most of the complainant’s allegations were founded.

At the hearing of the grievance, the arbitrator engaged in a detailed analysis of the grievor’s work history on prior productions where the complainant was present, as well as the incident leading to the harassment complaint at the center of the litigation. On many of the points the arbitrator was required to determine the credibility of the complainant as opposed to the grievor.

At the hearing the arbitrator found the grievor to be evasive, unremorseful and unapologetic.

Shockingly, there was also an incident during the course of the hearing in which the grievor confronted the workplace harassment investigator, which he later did apologize for, and which the arbitrator described thus in her reasons:

"At a point when it was most important for the Grievor to control his angry behaviour, he was unable to do so. In the course of our hearing, Investigator Gillian Shearer provided her evidence. It was evidence contrary to the interests of the Grievor. She completed that process, and was excused. She walked out onto University Avenue. The Grievor came up to Ms Shearer from behind, invaded her personal space, startled her, and angrily confronted her."

In the final analysis, the arbitrator determined that the grievor had engaged in workplace harassment, both as defined by the Occupational Health and Safety Act and the employer’s policy, in these terms:

"The Grievor employed serious and vexatious language in his harassment of the complainant Veltri, on November 11, 2014. He refused to costume him or pad his shoes – things that were completely within the Grievor’s realm of responsibility. He accused Veltri of having abused him on another set, and stated that he would not deal with him. He was angry and loud. He threatened physical violence if he saw Veltri outside of the workplace. The Grievor continued to verbally harass Veltri throughout the day, calling him a racist, motherfucker, belittling his server job, and belittling his work as a background actor. The behaviour was maintained throughout the work day. The victim of the harassment was a younger co-worker with less experience in the industry.

The harassment was not a mere momentary flare up, but was renewed throughout the course of the day. I take the Grievor’s actions as a deliberate and intentional course of conduct. The harassment was sufficiently serious to cause the complainant to feel “handcuffed”, victimized, and ultimately, uncomfortable and unsafe in his workplace."

The arbitrator also determined that there was no evidence that the grievor was subject to differential treatment on the basis of his race. On the contrary, the arbitrator concluded that the grievor simply, "when angry, lashes out with allegations of racism". 

In considering the proportionality of the discipline imposed, the arbitrator did take into account the grievor’s seniority but found this was outweighed by other considerations.

As for the confrontation with the investigator the arbitrator remarked:

"It is disturbing to note that this is a case in which the Grievor is accused of being aggressive with co-workers, angrily confronting them, violating their personal space, using his words to intimidate and make them uncomfortable, and failing to use established processes for voicing his concerns. In this very case, in which his behaviour is being examined in detail, and in which he professes his innocence of all allegations, he demonstrated similar conduct.

 The Grievor brings considerable seniority to this matter, and in light of that seniority, the Board has considered the appropriateness of providing a “last chance” opportunity to the Grievor. However, the incident with the Investigator during our hearing serves to convince this Board that the Grievor is limited in his ability to control his behaviour when he is angry, or perceives that he has been wronged. If the best predictor of future behaviour is history, the Board has no optimism about the Grievor’s future ability to control his angry behaviour in the workplace in the future."

More generally, the arbitrator noted that :

"There is no evidence that he acknowledges his angry workplace behaviour toward others, that he has reflected on that behaviour in any way, or that he has personally taken steps to learn how to modify or control that behaviour. There is no evidence that he takes personal responsibility for his behaviour at work."

Accordingly the grievance was dismissed.

As in so many other harassment cases, the facts are largely determinative. However, this decision does stand as a further example in a growing line of cases that arbitral tolerance of harassing behavior in the workplace is at an all-time low.

As the arbitrator noted in her reasons in this case, the workplace harassment provisions of the Occupational Health and Safety Act have modified the legal landscape in a number of important ways, which the arbitrator summarized in this fashion:

"1.  The amendments clarify the way in which the workplace parties, adjudicators, arbitrators and judges must think about incidents involving the inappropriate use of language in the workplace. Vexatious language is harassment, and is very serious in its own right.

 2.  The amendments make it clear that employers must react to an allegation of workplace harassment or workplace violence quickly, and with gravitas. They must stop cold. They must respond to allegations of dangerous behaviour in the workplace. They must have a clear policy in place, they must follow the procedure set out in the policy, they must investigate, and they must act in a manner consistent with the findings of that investigation. This is not to say that termination is always the appropriate result. The changes do not create a situation of “zero tolerance” for workplace violence. Discipline must be thoughtful and proportionate to the misconduct, and to the impact of that behaviour.

 3.  The amendments require an arbitrator, while considering the factors relevant to the proportionality of the penalty imposed, to give increased weight to the seriousness of the incident; and

 4.  The amendments require an arbitrator to add to the list of relevant factors the probability that the Employer can fulfill its obligation to provide a safe workplace if the Grievor is reinstated. The employment relations will be incapable of reparation if the offending employee is likely to repeat his or her behaviour, and continue to render the workplace unsafe to others."