Probation officer fired for sexual harassment wins job back

The termination of a Moncton-based probation officerwho lost his job for sexual harassment and creating a poisonedwork environmentwas recently ruled too severe.

When Department of Justice and Public Safety probationofficer Kevin Kelly was accused of grabbing coworkers' buttocks, starting inappropriate conversationsand undressing with open doors, his directors ordered an external investigation and terminated him without any remediation.

Kelly's CUPE Local 1418 filed agrievance againstthe termination andan independent adjudicator reviewed the incidents that led up to the 30-year-old's termination, determiningseveral factors were overlooked.

Sexual workplace culture

Following the testimony of several witnesses who worked alongside of Kelly, adjudicator Robert Breen concluded that the workplace environment at the Monctonprobationoffice was at times "barnyard like" with a culture that allowed for sexual banter and gestures.

Monique Desroches,CUPE1418 negotiator,was involved in the case and said that kind of context is critical in evaluating the appropriate punishment.

When there's an office culture that exists, the line becomes very grey in terms of determining if harassment has occurred.- MoniqueDesroches, CUPE negotiator

"When there's an office culture that exists, the line becomes very grey in terms of determining if harassment has occurred or harassment has not occurred." she said.

"It is a bigger issue than just one case."

Breen also concluded that there was a delay in dealing with the cases, with the October 2015 termination responding to events that happened between 2012 and 2014.

He noted that Kelly had never been approached about his indiscretions or given warning from his superiors to adjust his behaviours.

He was presented the external review in the same meeting in which he received his termination notice.

Unseen workplace policies

When asked about his knowledge of a harassment policy, Kelly told the adjudicator he knew it existed but that he had never reviewed it, something he says he indicated that on his performance evaluation forms.

His former co-workers, who testified made similar admissions, something Desroches says is common.

"We deal with these cases a lot in that sense, employers think, 'Well employees should know better,' so they don't take on their role of training their employees and the employees sometimes take on the idea, 'Management should protect me,'" she said.

But she says everyone has a role to play andthe problem is people don't always know their role.

"That's why every employer should have a policy in placeand every employee should know this policy exists and what it means," she said.

"It all comes back to education and training and working together towards preventing these types of office cultures from being."

Punishment set at 5-month suspension

Breen determined Kelly's punishment should be revised to five months without pay something he has served since his termination and instructed Kelly take sensitivity training at his own cost.

Breen acknowledged the impact Kelly had on the witnesses, who testified his return would cause them severe discomfort, and requested the department find Kelly a position of equal pay in another office, within a reasonable time period.

Until then, Kelly will be on temporary absence, with pay.

The Department of Justice and Public Safety has three months from the July 27 decision to file an appeal.