Progressive discipline required — even in harassment cases

Pattern of harassing behaviour not enough to forgo progressive discipline in favour of dismissal: Arbitrator
By Keri Bennett
|employmentlawtoday.com|Last Updated: 06/21/2013

A long-service costume designer was dismissed following a workplace harassment investigation. The employer also banned the guilty employee from all of its future productions. A British Columbia arbitrator found the ban to be excessive because of a lack of progressive discipline. The arbitrator in Warner Bros. Television (B.C.) Inc. ruled that even the least remorseful of employees is entitled to an opportunity to change their behaviour.

A junior employee made a workplace harassment complaint that the costume designer (“the Grievor”) made several derogatory comments and grabbed her arm hard enough to bruise. Numerous other junior employees later came forward with complaints of derogatory comments and belittling behavior that spanned a period of seven years. The investigation also revealed allegations that the Grievor had been billing the Company’s costume department for personal items.

Based on the results of the investigation, the Company dismissed the Grievor from the production. It also issued a no-hire order. That barred her from working on any of the Company’s other productions. The employee filed a grievance, which was arbitrated.

The arbitrator found that there was insufficient evidence to conclude that the employee had used the property of the production for her own private purposes.

In regards to the harassment complaints, the arbitrator took note of the “tough” workplace environment in the film and television industry. The arbitrator accepted the evidence that the Grievor was quick to anger, aggressive and used profanity in her interactions with co-workers. She often made derogatory, inappropriate and demeaning remarks to co-workers. He also found that the Grievor once grabbed a junior employee’s arm hard enough to bruise.

This “pattern of objectionable conduct” was contrary to the Company’s workplace harassment policy. Further, the Grievor showed no remorse or insight into her behaviour.

Despite those factual findings, the arbitrator ruled that the normal requirement of following progressive discipline should apply here. The Company had not met that requirement. He decided that the Company was not required to reinstate the Grievor to the current production, but the no-hire ban for all future productions was excessive. The issue of appropriate restrictions for work on future productions was left to the parties to agree upon.

Take away for employers

Progressive discipline remains the gold standard for most workplace misconduct. Employers are advised to not only develop and implement robust workplace harassment policies, but also to develop and implement effective progressive discipline procedures.

For more information see:

Warner Bros. Television (B.C.) Inc. (Nov. 30, 2012), M. Fleming - Arb. (B.C. Arb.).

Keri L. Bennett is an associate practising labour and employment law with Fasken Martineau in Toronto. She can be reached at (416) 868-3412 or kebennett@fasken.com. © 2013, Fasken Martineau DuMoulin LLP. This article was reprinted with permission from Northern Exposure, a blog written by lawyers at the law firm of Fasken Martineau and produced in conjunction with HRHero.com. You can read more Northern Exposure blog posts at http://blogs.hrhero.com/northernexposure. You can also find Fasken's weekly bulletin, "The HR Space" at http://www.fasken.com/en/the-hr-space.

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