In my previous blog, I referred to a recent case where an employer was liable for $300 in damages after a colleague called the employee a “bitch” and the employer fired her two days after making the complaint. In that case, the employer wrongfully penalized the victim. However, penalizing the perpetrator who makes the sexist comment can also be challenging.

An employee’s misbehaviour, such as making a sexist comment, must be analyzed in context. In many cases, the best way of understanding the misconduct is by conducting a workplace investigation. From the substantiated facts from a workplace investigation along with the context from the employee’s file, including their years of service and past discipline, the employer can determine a reasonable level of discipline. In the case of Sterling Crane v International Union of Operating Engineers Local 955 (2024 CanLII 46844), the employer’s failure to investigate a case of a sexist comment being made and firing the employee who said the sexist comment ended up costing them.

Sterling Crane v International Union of Operating Engineers Local 955 (2024 CanLII 46844)

In Sterling Crane v International Union of Operating Engineers Local 955, Jonathan Cormier worked for Sterling Crane as a crane operator for two years, although he had 14 years of experience. Ahead of a tool talk, which is a meeting with the staff before the work starts, Mr. Cormier was walking in from the parking lot to the lunchroom, where the tool talk was to be held, with Peter Boleska. While walking, Mr. Boleska told Mr. Cormier about how he learned that his girlfriend was dating other men. While they were walking into the lunchroom, Mr. Cormier said something along the lines of “Some girls are “hos” and you need to pick the good ones from the bad ones and move on.” This was heard by a couple of the female employees, who were already in the lunchroom, who reported Mr. Cormier’s use of the word “hos.” The HR immediately collected some statements but did not do a full investigation. Ultimately, Sterling Crane fired Mr. Cormier for using the sexist expression “ho” contrary to its Workplace Harassment Policy. Mr. Cormier filed a grievance, arguing that the termination was a too harsh form of discipline.

The arbitrator upheld the grievance. The arbitrator noted that the employer’s failure to investigate harmed its position, as it limited the facts that it could rely on, including exactly what Mr. Cormier said and the context around it. However, failing to investigate is not fatal to impose discipline and termination. Although the arbitrator found that Mr. Cormier used the sexist word “ho”, which the employer must attempt to prevent, the employer overreacted by terminating Mr. Cormier. The arbitrator ruled that the comment was worthy of a three-day unpaid suspension. As such, Mr. Cormier was reinstated with back pay, minus three days, which served as the three-day suspension.

Takeaways from Sterling Crane v International Union of Operating Engineers Local 955

This decision is not a surprising one. Though using sexist language in the workplace is something that employers must address, a single sexist comment, not directed at anyone does not amount to just cause. It should only be a single stage in progressive discipline. If the employee continues to use sexist language, then you can continue to impose progressive discipline.

This case also stands for the importance of doing workplace investigations. Had the employer conducted a workplace investigation, they would have been in a better position to establish facts and not rely on faded memories. A workplace investigation allows for a more thorough understanding of the misconduct, closer to when it happened, with the findings more likely to be upheld in court.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation we have a team of experienced workplace investigators. Our workplace investigators are also employment lawyers, so after investigating an incident and coming to a conclusion, we can advise you on the appropriate employer actions. If you would like to speak to one of our workplace investigators, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.