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.(PDF) 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
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.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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