By Keri Bennett
When a long-service costume designer was dismissed following a workplace harassment investigation, a British Colombia arbitrator found the company’s no-hire ban for all future productions to be excessive, since there was a lack of progressive discipline.
Despite finding that the fired employee had engaged in longstanding and widespread harassment of junior employees, the arbitrator in Warner Bros. Television (B.C.) Inc. ruled that even the least remorseful of employees is entitled to an opportunity to change his or her behavior.
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 subsequently came forward with complaints of derogatory comments and belittling behavior that spanned a period of seven years.
The investigation also reviewed allegations that the grievor had been billing the 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 coworkers. She often made derogatory, inappropriate, and demeaning remarks to coworkers. 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 behavior.
Despite those factual findings, the arbitrator ruled that the normal requirement of following progressive discipline applied here. He decided that the company wasn’t required to reinstate the grievor to the current production, but the no-hire for all future productions was excessive. The issue of appropriate restrictions for work on future productions was left to the parties to agree upon.
Takeaway 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.
Keri Bennett engages in a broad labour and employment practice advising public and private sector organizations on all aspects of the employment relationship. Keri represents clients in matters before the BC Labour Relations Board, BC Human Rights Tribunal, BC Employment Standards Branch, the Workers' Compensation Appeal Tribunal, the courts, and labour arbitrators. Keri previously was an associate in the Toronto office of Fasken Martineau LLP and represented clients in matters before Ontario courts, tribunals and labour arbitrators.