Uncomfortable Situation a Punishable Offence Says Arbitrator
Written by Daniel Standing LL.B., Editor, First Reference Inc.
A recent British Columbia arbitration case provides employers several kernels of wisdom respecting the investigation and punishment of conduct that violates a respectful workplace policy. Largely centered on the witnesses’ credibility, 2022 CanLII 60943 (BC LA) is a case that employers can turn to for guidance when dealing with such uncomfortable situations.
The incident at the heart of the grievance took place in a public park while three municipal maintenance employees were taking their lunch break. There were some discrepancies between the two sides’ versions of events, but essentially, the following is what the arbitrator found to have happened.
On the day in question, the grievor, a 57-year-old man, was working with two young men who were about 19 years old. While they were eating at a picnic table in a public park, the grievor used his personal phone to access some pornographic images, including a video that included slapping and moaning sounds. One of the younger men inadvertently saw the images and overheard the sounds, which made him very uncomfortable. He confirmed with his young colleague that they had in fact heard pornography, and that night, he discussed his concerns with his mother before filling out a complaint form under the municipality’s respectful workplace policy. The policy provides that the employer is
“committed to creating and sustaining a healthy, safe and caring work environment where employees are treated with respect, honesty, and dignity…Behaviour and/or situations that run contrary to such treatment will not be tolerated.”
On receipt of the complaint, the employer spoke to the two young men, and then, without divulging the identities of the complainant and witness, got the grievor’s version of events. The grievor was adamant he never ate lunch with the two other employees that day, nor did he access porn on his phone. At the hearing, he said he tried to obtain his browsing history from his Internet service provider to prove his innocence, but to no avail.
The employer chose to believe the two young men and issued the grievor a written warning. The union said no discipline was warranted at all.
The arbitrator’s decision
The vast majority of the arbitrator’s analysis was devoted to findings of credibility. Using the hallmarks of internal consistency, corroboration and overall plausibility, the arbitrator preferred the employer’s version of what happened.
For example, there was no basis for concluding (as the grievor argued) that the complaint was motivated by animosity against him personally, or that on the day in question, the grievor ate lunch alone. Also, the grievor’s attempt to obtain his phone records as a means of exonerating himself had a major problem: these records would not have shown his browsing history while in “incognito” mode, a way to bypass the Internet browser’s history-recording function.
The decision was not completely one-sided, however. It concludes with an agreement with the union’s argument that the employer should have interviewed the complainant and witness before interviewing the grievor so that it could provide him with the name of the complainant. Doing so, the arbitrator explained, allows the employee to help remember the incident and tell the investigator about any reasons why the complainant might be mistaken or misleading in their allegations. In this case, though, learning the complainant’s name didn’t prompt the grievor to provide any extra information, so he wasn’t found to have been prejudiced by the employer’s error.
The final paragraph makes clear that the grievor’s actions, despite them happening on his own time while using his own phone in a public park, were still in the presence of other employees even though he denied that it happened. This was unwelcome and objectionable behaviour that merited the discipline imposed, so the grievance was dismissed.
This case is a good reminder that conduct that perhaps isn’t even intended to be noticed by others can run afoul of respectful workplace policies if it offends the policy and occurs in the presence of fellow employees in the workplace. It’s getting to that conclusion that can cause some difficulty, especially if there are credibility issues to sort out first.
Second, the case establishes that it is usually a good practice to interview the complainant and any witnesses before getting the grievor’s version of events. This serves two purposes: it gives the grievor context, enabling a more complete response, and second, the additional context allows the investigator to do a more thorough job of questioning the respondent.
Another, and perhaps better, question is was this really worth the time and expense of a three day arbitration hearing.
I had a quick look at the award. I really appreciated learning that the grievor, “is married, with two adult children and a grandchild on the way”, and all the other details of questionable relevance.
Is this what we need formal legal proceedings and publicly accessible databases like CanLII for? Our tribunals and courts can’t keep up with the demand for the hearing of important matters. Decisions like this go a long way to explaining why.
It’s disturbing that the ISP never provided the records. As the decision correctly states, these may show access of a site even if he used incognito. It would not show access if he used a VPN, but there would be evidence of VPN use. Therefore, no log of pornographic websites and no VPN use would tend to exonerate. I see no mention in the decision of what happened to this line of evidence-gathering.