Sterling Crane v International Union of Operating Engineers Local 955, 2024 CanLII 46844 (AB GAA) (Norrie) is an Alberta grievance arbitration decision where an employer terminated an employee, purportedly for just cause, for making a sexist comment. The union grieved the termination and it was overturned.
Facts
The following were the facts summarized by grievance arbitrator Mia Norrie:
- The grievor Jonathan Cormier worked for the employer, Sterling Crane
- At the relevant time he was working at the employer’s Genesee work site
- At the start of one of his shifts he was entering the lunchroom where the morning toolbox meeting was going to take place. He was having a personal conversation about his personal life and made a comment to the effect of “women are ‘ho’s’”
- The employer gathered some information, but did not conduct a fulsome investigation or give the grievor a fulsome investigation interview
- Not having a fulsome investigation meant that the arbitrator felt there was less certainty around the facts the employer was trying to rely on to support the termination
- The grievor was he was confronted by management with what he said. He did not take responsibility and referred to the situation as “bullshit”.
- The grievor’s employment was terminated that day for violation of the Workplace Harassment Policy
Analysis / Conclusion
The arbitrator noted that it was stupid, insensitive and inappropriate for the grievor to have referred to women as “hos” in the workplace, especially where female co-workers were present. She noted that the comment was worthy of discipline, but it was not as serious as some of the sexist, racist and vile comments in the caselaw.
The arbitrator found that termination of employment was excessive, and other options would have been more appropriate, such as a short suspension with an education component so that the grievor could understand the impact of his actions. She noted:
141 […] The need to change culture is critical, it does not however require the termination of an employee to achieve it.
The arbitrator went on to acknowledge that the conduct was serious, especially given that the grievor did not acknowledge wrongdoing at the outset and it did not appear that he appreciated the true nature of the misconduct. She found that a written warning would not have been sufficient discipline in the circumstances.
My Take
Given employers’ obligations to ensure a harassment free workplace, it is not surprising to me that they attempted termination for cause.
I also think this case could have gone either way.
The arbitrator found that the employer did not conduct a thorough investigation, which seemed to harm its ability to rely on certain evidence somewhat, but the arbitrator was clearly satisfied that the grievor made a sexist comment in the presence of female colleagues and then totally refused accountability. In labour law, refusing accountability is an aggravating factor in determining appropriate discipline.
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