- June 9, 2021
- Miscellaneous
This matter relates to a grievance filed by the Union on behalf of the Dudley Wright (the “Grievor”), who was terminated by the Employer for alleged workplace harassment. The Union argued that the termination was without just cause and constituted racial discrimination contrary to the Human Rights Code. The Grievor, who worked in the wardrobe department, is black. The Complainant who accused him of harassment worked as a background performer and is white.
The Complainant complained about the Grievor while both of them were working on the set of Reign, a television production. As required by its harassment policy, the Employer retained the services of a workplace investigator, Gillian Shearer. She concluded, after conducting an investigation, that the Complainant’s allegations were grounded in fact. The Employer accepted Shearer’s and terminated the Grievor.
After hearing evidence from several witnesses, the Arbitrator determined that the harassment allegations were grounded in fact. The Arbitrator did not find the Grievor credible and preferred the evidence of other witnesses when it contradicted the Grievor’s. The Arbitrator found that the Grievor had, among other things, angrily confronted others in the workplace, violated their personal space, glared, shunned or ignored others, and engaged in name-calling. These actions constituted workplace harassment. The Arbitrator found no evidence of differential treatment of the Grievor on account of his race and dismissed the allegation of discrimination.
In determining whether the penalty was appropriate, the Arbitrator considered the Employer’s duties pursuant to the Bill 168 Amendments to the Occupational Health and Safety Act; the impact on the Complainant, a younger worker with less experience in the industry who was made to feel unsafe in his workplace; the lack of provocation by the Complainant; the lack of admission or apology by the Grievor; and the fact that termination in the industry did not result in a loss of the Grievor’s ability to continue to work but merely prevented him from working on the Employer’s productions. In the circumstances, the Arbitrator concluded termination was justified.
The Arbitrator stated that her decision to uphold the termination without providing a last chance to the Grievor was influenced by an incident that occurred during the proceedings: after Shearer had concluded her testimony and been excused from the hearing, the Grievor followed her outside, came up to her from behind, invaded her personal space, and angrily confronted her. Shearer returned to the hearing and gave evidence about the incident. Notwithstanding the Grievor’s subsequent apology, the incident persuaded the Arbitrator that the Grievor was unable to control his behaviour when angry and that he was unlikely to change his behaviour.