‘Barnyard’ workplace cited in sex case

MONC TON, N. B . • The “barnyard-like” atmosphere of sexual banter and gestures around the office helped convince a New Brunswick adjudicator to reverse the firing of a probation officer for sexual harassment.

Adjudicator Robert Breen says in his decision, dated July 28, that Kevin Kelly’s firing was too severe a penalty and is instead calling for a five-month suspension without pay and his reinstatement in a different office.

“A mitigating consideration here is ... the cited ‘office culture’ of the Moncton probation office,” he wrote.

“This, I observe, can be described, at times, as ‘barnyard’ like.”

Kelly had been accused of grabbing female coworkers’ buttocks and legs at staff parties in 2014, making inappropriate sexual comments and leaving his office door open while visible in his boxer shorts.

His union, local CUPE 1418, filed a grievance arguing his firing was too severe a penalty, in part because Kelly wasn’t given early enough warnings about his behaviour and because of a general lack of training of the staff in the office.

The decision says the union argued that evidence showed nobody in the office had ever been disciplined for sexual joking, “raising ... the question of ‘ what is permissible’ and ‘what is accepted.’ “

The adjudicator said in his written decision that the series of incidents testified to by co-workers fell within the definition of sexual harassment and had created a “poisoned work environment.”

Breen also noted that Kelly had been shown the government’s harassment policy.

But he said in some cases the employer had taken a long time to act on the allegations, and in some instances Kelly wasn’t shown sufficient details of what he was accused of doing.

Breen’s decision said testimony by co-workers indicated that Kelly had discussed his penis size and, in a separate incident, had asked a female co-worker if she had a condom and then added that if she did, he would like to have sex with her immediately.

There was also testimony in the hearing that Kelly was seen “humping” door frames of female co-workers. However, Breen noted that Kelly testified other male employees made similar humping motions in the office.

He also wrote that earlier intervention might have been wise.

The adjudicator also said he was troubled that an office supervisor hadn’t testified, noting “many of Kelly’s office behaviours ... would have been in his sight, including the so-called ‘humping,’ the ongoing sexual joking.”

He also said the supervisor “apparently participated in disputed behaviour at times.”

A spokesman for the province’s Department of Public Safety and Justice said the department is reviewing the decision “and will not comment further at this time.”

The union declined to comment.