Question(s) to be Determined: Whether the kind of misconduct exhibited by the Grievor, the buttocks-slapping incident, the Facebook exchange, the Grievor’s conduct towards co-workers, and his insolence toward his supervisor, constituted the abusive harassment of other people in his workplace.
Findings: It was found that although the Grievor’s swatting the buttocks of the Complainant may have been technically within the Employer’s meaning of “harassment” or “sexual harassment” as an act of unwelcome physical contact between man and woman, in character it falls toward the very low end of the scale of severity. In regards to the Facebook exchanges, this was characterized as mild to moderately serious misconduct, the Grievor’s fault being mitigated somewhat by the shared fault of the Complainant in causing the insults to spiral out of control. Taken together, it is was concluded that the incident justifies discipline, but not discharge. Therefore, the grievance was upheld and grievor was reinstated without compensation.
Reasoning: It was found that while the Facebook posts were initiated off-duty and largely through private messaging, they did constitute work related conduct, emphasizing that exchanges between co-workers are work-related conduct regardless of where the communication occurs.
Edmond Hajrallahu was a 0.5 FTE regular part-time clerical employee of Alberta Health Services classified as Administrative Support III. He worked in the Department of Patient Information at the Tom Baker Cancer Centre in Calgary, where he performed general clerical and record keeping duties. On October 6, 2009 his employment was terminated for alleged harassment of a co-worker and abusive behaviour towards his supervisor and co-workers. This followed an earlier five-day suspension, in February 2009, for an incident of what the Employer deemed to be sexual harassment. The suspension was not grieved. Mr. Hajrullahu did grieve his termination, and this board was constituted to hear the grievance after the parties were unable to resolve it through their grievance procedure.
Human Resources representative Mr. Illodo and Mr. Walter reviewed the documentation and Mr. Illodo’s notes and impressions of what he had learned about the conflict in this workplace. They provisionally concluded that there had been an act of harassment by the Grievor against F. in June. They analyzed the Facebook exchange and interpreted the messages as abusive. Mr. Illodo acknowledged that the remarks were inappropriate going both directions, but said that it was their judgment that the Grievor had started the dispute with his comment about “Arnold arms”. He said that overall the tone and content of the Grievor’s messages was the worse, that it was “very disrespectful”. After the interview, Illodo and Walter caucused to consider what they had been told and came to the conclusion that, particularly in view of the past suspension, there was cause to terminate the Grievor’s employment.
The Grievor denied the allegations that he conducted himself in the workplace in an aggressive or abrasive manner. He told us that he treats women with respect.
The Employer’s case is built upon the idea that there is one central kind of misconduct exhibited by the Grievor, the abusive harassment of other people in his workplace. Into this one characterization it tries to fit several elements: the Grievor’s previous discipline; the buttocks-slapping incident in June 2009, which it characterizes as sexual or physical harassment; the Facebook exchange; the general complaints of the Grievor’s co-workers and manager about his performance and manner in the workplace; and his direct dealings with his manager in the period leading up to his dismissal. There are problems, however, with approaching the facts of the case as one more or less uniform course of misconduct. One is that of discerning the truth of the buttocksslapping incident against a backdrop of two employees who possessed some measure of social relationship between them. Another is that the Facebook exchange, however discreditable to both participants, happened in part while both employees were off-duty and that both of them, however improbably, seem to have treated it as not being conduct that related to work. They considered themselves free to indulge in a cycle of nasty, personal remarks in which there was provocation on both sides. A problem related to both the Facebook exchange and the buttocks-slapping incident is the passage of time: what should it be taken to mean that the Complainant did not make the buttocks-slapping incident an issue for management until three months after it occurred; nor the Facebook exchange for a full month afterward? And there is the conceptual problem is that in the dealings between the Grievor and his supervisor, Ms. Jina was not powerless. She was management, and what the Employer characterizes as this element of “abuse” in fact has more the character of insubordination or insolence. Considerations of whether and how management asserted its authority to control insolent or insubordinate behaviour are relevant to such misconduct.
As a panel of experienced labour relations practitioners, we would be the last to deny that office politics exist, or that gender imbalances in the workplace (in either direction) can lend themselves to more, and worse, workplace disputes than normal. In our experience, however, real workplace conspiracies aimed at a wholly innocent employee are much rarer than employees often believe them to be.
All of these areas of misconduct – the buttocks-slapping incident, the Facebook exchange, the Grievor’s conduct towards co-workers, and his insolence toward his supervisor – furnish cause for discipline. The next question is whether discharge is appropriate or excessive in the circumstances.
The Grievor’s swatting the buttocks of the Complainant was without doubt an “act of workplace foolishness”. It was crass and presumptuous. It was offensive as between a man and woman who had not reached a level of close friendship and familiarity that goes beyond that of casual workplace acquaintance. It had, or was capable of having, sexual overtones. But though it may have been technically within the Employer’s meaning of “harassment” or “sexual harassment” as an act of unwelcome physical contact between man and woman, in character it falls toward the very low end of the scale of severity. We have already observed that it did not appear to be aimed at inflicting pain, but only shock or surprise. It was a single, sharp but fleeting physical contact, after which the Grievor went away. It was not a fondling or lingering physical contact that would accentuate the sexual character of the act. And, highly important to our analysis, the action was never repeated after the Complainant confronted the Grievor and told him he was out of line. Taken together, these facts make the incident one that to us justifies discipline, even significant discipline, but not discharge.
The Facebook exchange was discreditable to both participants. The language was unrestrained, insulting and fully capable of generating animosity between Complainant and Grievor that could make it difficult for them to work together. The incident warranted discipline. Again, however, in severity it falls short of a level warranting discharge. The exchange was a first and only occurrence of its type between these employees. There appears – most clearly in the testimony of the Complainant – to have operated between them a curious inability to understand that insulting and alienating a co-worker through a social media application is in fact work-related conduct. And again very importantly, the Grievor cut off the conversation and did not repeat his conduct after he was forcefully told by the Complainant to stop.
Turning finally to the conduct that the Employer characterizes as abuse of coworkers and supervisor, we intend to concentrate upon the incident between the Grievor and Ms. Jina. We accept the evidence about the Grievor’s manner with his co-workers and find that it is capable of supporting discipline. The concept of progressive discipline, however, includes the idea that at the early stages of an employee’s misbehaviour, management will do what is reasonable to take corrective action directly with the employee. There is no indication in the evidence that management confronted the Grievor about his behaviour in any effective way before the meeting of September 24 in Ms. Jina’s office. In the absence of any such evidence, the appropriate discipline warranted by this element of the Grievor’s conduct would be very mild indeed, if discipline could be supported at all.
We are therefore left with a short-service employee with a recent five-day suspension for conduct broadly similar to some of the conduct in this case. We have an incident of harassment or physical abuse of a co-worker, F., that is mild in severity as cases of harassment go, but that we assess as moderately serious misconduct considering the toxic effect of harassment like this that has even a distantly sexual character. There is proved the misconduct of the Grievor’s part in the Facebook exchange. This we characterize as mild to moderately serious misconduct, the Grievor’s fault being mitigated somewhat by the shared fault of the Complainant in causing the insults to spiral out of control. We have the Grievor’s conduct to his co-workers, which is of too little weight to make a difference in our assessment, mostly because he was not previously called to account by management. And we have the Grievor’s insolent and threatening behaviour to Ms. Jina. This we have characterized as moderately serious misconduct, because although it was contemptuous of and resistant to management authority, it was not profane and it was not done in public.
Taken together, this plainly justifies a very significant disciplinary response from the Employer. We are unable, however, to bring ourselves to conclude that discharge was an appropriate response. While taken as a whole the Grievor’s course of misconduct was highly blameworthy, it was not so serious that we may conclude with assurance that the employment relationship is irreparable, or that the Grievor is not salvageable as an employee with the benefit of effective management. There turned out to be some mitigating facts and considerations in the case as it was presented to us. These might have been ascertained with a discharge investigation that was less of a rush to judgment than this one was. Overall, then, the case warrants a judgment that discharge was excessive in all the circumstances.