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Hearst man re-hired after sexual assault incident

By Len Gillis

A 56-year-old Hearst man who poked a finger into co-workers ripped jeans, and was then fired for sexual assault, has been given his job back at the Tembec Enterprises Sawmill in Hearst by a labour arbitrator, Postmedia has learned.

A hearing into the incident was held in Timmins in November before arbitrator Michael Bendell. Tembec Enterprises employee Jean-Louis Hardy, who had been fired for the incident, had challenged his dismissal with the help of United Steelworkers Local 1-2010.

The arbitrator agreed with the union argument that while Hardy acted improperly and required discipline, the incident was not enough to justify a full dismissal.

The arbitrator has decided Hardy can return to work by the first week of January 2018, but there was no award made with respect to lost wages and benefits.

The hearing was told that the incident took place on September 6, 2017 while Hardy was working in close proximity to a 19-year-old woman at the Hearst sawmill.
As the woman was walking past him, Hardy told her she had a rip at the back of her jeans. The rip, about three centimetres square, exposed some of her skin and her underwear.

“Hardy then poked a finger of his gloved hand through the hole in the jeans, touching her skin. As he did so, he made a comment to the effect that she was wearing pretty pink underwear,” said the statement of facts from the arbitration decision. Hardy did not dispute this report of his actions.

The victim in the incident, described at the hearing as Ms. X, did not immediately report what happened. However, she had a regular ride to and from work with a supervisor. She mentioned to the supervisor that she had seen unwelcome comments on her Facebook page from Hardy. She also described the jeans incident that occurred on September 6.

Subsequently, Bryan Fleury, the Human Resources Superintendent, was advised what happened. He was also advised by the supervisor that Ms. X said she did not want to file a complaint under the Tembec harassment policy. It was later suggested this might have been because the young woman was a new hire and still on probation.

Regardless, Fleury moved forward to investigate and met separately with both employees, Hardy and Ms. X, to listen to their versions of what happened.

In the meeting with Ms. X, she revealed she had told her parents about the Facebook comments. The parents were worried about the Facebook conversation and insisted the daughter report it to the police. Hearst OPP visited with Ms. X and took her complaint. The OPP subsequently advised that after meeting with Hardy, it appeared his actions were not enough to get a conviction.

Also at the meeting with Fleury, Ms. X revealed that while she was upset about the jeans incident with Hardy, she felt she could still work with the man.
After the meeting with Ms. X, Fleury set up a meeting with Hardy. The hearing statement said Hardy told Fleury he agreed with what Ms. X had reported, for the most part.

According to Fleury’s statement: “He specified that he had “poked” Ms. X in the buttock area, but had not “grabbed” her. He added that maybe he should not have touched her at all. When asked if anything else had happened between him and Ms. X, the grievor (Hardy) said there had been some stuff on Facebook, but that since that had occurred away from the sawmill, it did not concern the employer.”

It was also at that meeting that Hardy made a statement about the workplace environment.

“The grievor (Hardy) told Mr. Fleury that “if this young girl can’t take it, she has no business being here…If she’s going to work with men, she has to expect that.” He added that the whole thing had been ‘a joke’,” said the arbitration statement

After the meetings, Fleury moved the issue forward to the corporate labour relations office, to the corporate human resources office and the site manager. The decision was made to terminate Hardy. At the meeting where Hardy was given his termination letter he repeated that “he had just poked her with his finger and had not grabbed her.”

In comments provided at the hearing, Fleury spoke of the Tembec harassment policy. “He confirmed that the policy was consistent with the principle of progressive discipline. The correction of unacceptable behaviour, rather than punishment, was the goal of the harassment policy, he stated, but in the case of serious misconduct the employer could terminate employment even for a first offence,” said he hearing statement.

Mr. Fleury viewed the torn jeans incident as an “escalation” from the Facebook conversation, said he hearing statement. Although Hardy had agreed with Ms. X’s version of what had occurred, he had shown no remorse about the incident and seemed to have no understanding as to why his conduct was unacceptable. Fleury felt that Hardy’s behaviour put other female employees at risk, the hearing was told.

In cross examination, Hardy confirmed he had been visited by OPP who advised that his Facebook messages to Ms. X and the jeans touching incident could constitute sexual harassment. Hardy told police he would do nothing like that again. Hardy also conceded in his testimony he should not have made the comment about Ms. X being able to handle workplace behaviour.

It was also revealed that Hardy took counselling for depression, to learn how to handle his emotions and to learn how not to do bad things in life.

The arbitrator expressed the opinion that the counselling might have been more to help Hardy deal with depression than to help to him learn how to be more respectful to his female co-workers.

Despite that, in the hearing statement, the arbitrator said he did not regard Hardy as a serious threat to other women in the workplace.

“I am not satisfied that the employment relationship has been irreparably destroyed by this single incident. I do not regard him as being such a grave threat to female employees that it would be unsafe for the employer to have him on its premises,” Bendell wrote.

“In my view, a significant unpaid suspension will likely convince Hardy of the high cost of committing any sexual impropriety at the workplace and persuade him to steer clear of any interaction with female colleagues that is not strictly required by his work at the sawmill,” he concluded.