Custodian terminated for workplace harassment

Toronto District School Board worker fired for inappropriate conduct, harassment and for interfering with the employer’s investigation
|Canadian Labour Reporter|Last Updated: 05/13/2013

C.S. was a custodian for the Toronto District School Board with more than 20 years’ service. Previous discipline did not factor into his termination in September 2009.

In June 2009, a parent who was volunteering at the school where C.S. was working reported to the principal that C.S. had made a number of inappropriate remarks to her, including a sexual proposition.

During the course of the employer’s investigation into the incident, seven teachers came forward and alleged that they too had experienced similar encounters with C.S. over the years.

The teachers alleged that C.S. had engaged in a range of questionable conduct from sexual innuendo to inappropriate verbal expressions of affection to more direct and explicit forms of sexual invitation. No physical contact was alleged.

In many cases, the teachers reported that their fear and sense of personal insecurity was exacerbated by the timing and circumstances of C.S.’s approaches, which often occurred in empty photocopy rooms and classrooms.

Conspiracy alleged

C.S. refused the employer’s initial request to meet and discuss the allegations. He was reassigned to another school and then suspended with pay pending the employer’s investigation. After he failed to attend two more scheduled investigatory meetings, the suspension was extended without pay.

C.S. refused the employer’s request to return the keys to the school. He also disobeyed the employer’s order to refrain from contacting any parents or teachers who were involved in the investigation.

C.S. was fired.

C.S. denied all the allegations of inappropriate behaviour. He claimed that he was the victim of a conspiracy that was fuelled by racialized stereotypes of black men.

He did not deny the other charges of subsequent misconduct but said that he was justified in his actions by the employer’s mishandling of the investigation.

The Arbitrator upheld the termination.

The Arbitrator conceded that history bore witness to the fact that racist conspiracies have occurred. The Arbitrator also agreed that if C.S. was the victim of such a conspiracy that he would have access to remedies under the employer’s Workplace Harassment Policy. However, the Arbitrator said, there was no evidence to support a finding that a “malicious racist conspiracy” had been perpetrated against C.S.

“[T]he separate accounts of the various incidents involved in this case simply do not add up in a way that comes close to convincing me that bad faith, racism, or discrimination on the basis of race, either intentional or by way of unintentional adverse effect, was at the root of the accounts given by the employer’s witnesses or the fact that they complained to the employer,” the Arbitrator said.

Vexatious conduct

The Arbitrator acknowledged the union’s assertion that the testimony showed that, in the cases of some of the women approached, C.S. refrained from making further propositions after he was asked to stop.

The union argued that this showed that C.S.’s conduct fell short of the threshold for “vexatious conduct” that identifies “harassment” as defined in both the employer’s workplace policy and in the Ontario Human Rights Code. The Arbitrator disagreed. C.S. should have known his actions were unwelcome and his behaviour constituted a course of vexatious conduct towards a group of women. Discipline was warranted.

The Arbitrator said that C.S.’s conduct during the investigation — including his refusal to surrender the keys and his telephone and e-mail contacts with principals in the investigation — also warranted discipline.

“The grievor’s continued failure to return the keys, up to the end of the hearing, long after the heat of the moment when he was being transferred out of his home school, indicates a lack of willingness to acknowledge one of the basic parts of the employment relationship, his duty to treat the employer’s property as the employer’s rather than his own. It also serves to reinforce what appeared, throughout the proceedings, to be a total lack of behaviour on the grievor’s part which would demonstrate that the employment relationship could be repaired.”

The Arbitrator considered C.S.’s long service and discipline-free record as insufficient to mitigate the penalty of discharge.
C.S.’s unwillingness to surrender the keys was insubordinate. It also demonstrated that C.S. was no longer able to trust his employer. That lack of trust was further demonstrated by his unwillingness to attend meetings, return phone calls or e-mails or confirm that he was in receipt of the employer’s communications throughout the investigation.

The employment relationship was no longer viable, the Arbitrator said.

The grievance was dismissed.

Reference: Toronto District School Board and Canadian Union of Public Employees, Local 4400. Kathleen G. O’Neil — Sole Arbitrator. Howard Goldblatt for the Union. Amanda J. Hunter for the Employer. Nov. 16, 2012. 49 pp. Full Decision Order No. LVI4047-2.