Punishment right for fire captain’s ‘repugnant comments,’ rules arbitrator

An arbitration board has upheld the decision by the Calgary Fire Department to temporarily suspend and demote a captain after he used an expletive to describe female members of the fire crew.

In March 2011, Charles Hendricks, who had 33 years with the department, referred to the women on the fire crew he was working with as “gashes” and “cunts” while a female member of the force was riding in the same truck with him on return from a call.

In Calgary (City) v. Calgary Fire Fighters Association (International Association of Fire Fighters, Local 255) an arbitration board on July 9 dismissed a grievance by the union deciding an eight-week suspension and temporary demotion was suitable. The grievance came even after the city’s first reaction was to fire Hendricks. In its decision, the arbitration board called Hendricks’ conduct “a profound failure of leadership.”

On March 2, 2011 a fire crew from one of the city’s fire stations received an emergency call, which turned out to be routine. But on the way back to the station, Hendricks, a fire captain with CFD, made the remarks that resulted in his termination.

This particular station had three female fire fighters, which was unusual given there are only 30 female firefighters in the entire 1,300 uniformed member workforce. Hendricks was not the regular captain for the station, having been called into work to fill for the regular captain.

On the way back to the station in the truck, Hendricks asked his colleagues why there were so many “gashes” at that fire hall. When a colleague asked him what he meant, he replied, “Cunts, I mean cunts.” He didn’t seem to realize there was a female firefighter sitting in the back seat. When it was pointed out to him that she was behind him, he said, “I’m sorry, I forgot you were here.”

The CFD investigated the incident and two days later terminated Hendricks’ employment. However, during the grievance process, the CFD rescinded the termination and imposed an eight-week suspension and a temporary reduction in rank for six months. The union acknowledged the discipline was appropriate but took the position that the suspension from employment and the temporary reduction in rank was still too severe.

The issue in the arbitration was whether CFD had just cause to impose the modified discipline and whether the discipline was too severe a penalty taking into account the circumstances.

The arbitration board dismissed the grievance, finding that the revised discipline was not too severe. It noted that fire captains are in positions of authority and responsibility and are expected to act as role models.

“The comments by the Fire Captain were repugnant and demeaning towards women.”

The board went on to say: “Given his supervisory role, the fire captain was sending a message to his crew that it was acceptable to refer to female colleagues in derogatory and demeaning terms. The Fire Captain’s comments also conveyed that he questioned the legitimacy of women being in the firefighter workforce.”

The board considered the mitigating circumstances including a written apology supplied two weeks after the incident, his 33 years of service, and clean disciplinary record.

“I think it’s a reasonable result,” says lawyer Michael Wright of Cavalluzzo Hayes Shilton McIntyre & Cornish LLP. “This was an isolated remark. I would not have the same view if someone had a record of ongoing comments or inappropriate actions.

“An eight-week suspension is a significant financial penalty. Most arbitrators, when there is an admission the action was a major misconduct and if a suspension is imposed by the employer are not going to try and split hairs on the suspension,” he says.

Wright says by deciding not to fire the captain, the fire department did what few employers would do in a similar situation. “Frankly I don’t see a lot of that. I see a lot of employers say terminate the employee and if he gets reinstated that will be the arbitrator’s decision, but we’ve done everything we can here.”

While the natural reaction for many employers in cases like this is that the person needs to be gone, sometimes having them stay is not such a bad thing as they stand as an example to others that there are ramifications for such behaviour.

Wright says the union was in a position of representing both the female members of the crew and the captain who had offended them.

“Those are difficult situations for a union when you have one employee you represent accusing another of harassment or misconduct — you have a legal obligation to fairly represent everyone in the bargaining unit,” he says.

The case demonstrates the trend of courts and arbitrators to protect more vulnerable employees, such as women working in traditionally male-dominated roles, says Meighan Ferris-Miles of Shields O’Donnell MacKillop LLP.

“In the past, women were expected to roll with the punches in an attempt to fit in with the culture of the workplace. Now, even in situations where the target of offensive remarks does not come forward, employers are more often stepping in to create and maintain a culture of inclusiveness. The objective is often to improve morale and consequently productivity.”

Ferris-Miles says the case also illustrates the importance of in-house counsel and human resources to review emotional and sensitive incidents with an open mind.

“Here, through the grievance process, the deputy chief substituted a lesser penalty after considering all of the available evidence. Too often, we see employers that have made an emotional decision early on in a case and they are unwilling to reassess the situation later, even when there are new circumstances to consider such as a heartfelt apology,” she says.

“While it is always important to act quickly in situations of harassment, it is equally important to re-evaluate the decision if new information comes to light at a later time.”

The case also demonstrates that employers need to consider the full history of an employee before making a quick decision in the heat of the moment.

“There is definitely a good argument for summary dismissal here, but there are no absolutes,” says Stuart Rudner of Miller Thomson LLP. “I always advise clients not to go with your knee-jerk reaction. The courts have been pretty clear that you don’t look at the incident in isolation — you have to take a contextual approach, which means look at the entire relationship of employment. How long have they been there — have they been disciplined before?”

Rudner says employers might want to consider what their process would be in a similar incident. While most collective agreements have a set disciplinary process, for non-unionized environments it’s best to have a more open policy on how to handle different scenarios.

“What I tell employers is don’t tie your hands to a step-by-step discipline process — set out the penalties but have the discretion to make penalties suitable to the offence.”

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