Zero Tolerance — Can It Work in a Unionized Environment?

Abstract

A YOUNG WOMAN who works underground in a potash mine has just finished her shift. As she exits the “cage” at ground level and walks toward the change room, a 52-year-old male co-worker runs up behind her and grabs her crotch. The female worker is mortified. “It was just a joke,” says the man in his defence. There is no history of acrimony or harassment between the two. However, the employer has a “zero tolerance” policy toward sexual harassment and, after a brief investigation, the man — with 25 years seniority — is fired. The union, obliged by tradition and by law 1 to defend the grievor’s interests, responds by grieving the member’s dismissal and taking it to arbitration. The arbitrator’s decision is not an easy one. If he upholds the dismissal, he is sacrificing the time-honoured principle, embedded in Canadian industrial relations, of progressive discipline. Under this principle, a worker cannot be fired for a single incident unless

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