Sales rep’s drunken groping didn’t justify termination under unique circumstances
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Thursday, February 6, 2020

Sales rep’s drunken groping didn’t justify termination under unique circumstances

By WK Editorial Staff

Although sexual harassment was an offense that could justify termination, here the grievant admitted he was drunk and remembered almost nothing, expressed contrition, and the employer had supplied the liquor at the company-sponsored event.

After a top-performing route sales rep contested his termination for groping a female employee in an employer-provided limo following a company sales dinner, the arbitrator sustained his grievance. The employee’s only defense was that he was so drunk that he did not remember anything. And although the arbitrator concluded that the employee committed the acts for which he was terminated, he found that mitigating factors should be applied, including the employee’s long service record, his clean disciplinary record, and the fact that the employer supplied the liquor. As a result, the arbitrator determined the employer had lacked just cause to terminate, and he ordered reinstatement with an unpaid suspension from the date of termination until the date of reinstatement (Aramark Uniform & Career Apparel and Teamsters Local Union No. 769, Robert E. Light, Arbitrator. Selected by the parties. Case No. 180410-3458.).

Aramark hosted an evening out for "top performer" sales reps, which included dinner and a Miami Heat basketball game. One of the top performers, a 10-year sales rep, inappropriately groped and touched a female while riding in an employer-provided limo to the game. After an investigation, the employer terminated him, and he appealed.

The drunk defense. His only defense was that he was so drunk that he remembered nothing. He admitted to drinking before the game and to being drunk in the limo. He argued mitigating circumstances, and he asked for a lesser penalty that included reinstatement. The employer, on the other hand, contended that sexual harassment could not be tolerated in the workplace under any circumstances; it also noted that sexual harassment was grounds for immediate discharge, with no warning given. Swift and decisive action was necessary to deter others, the employer claimed.

You supplied the alcohol. The arbitrator was sympathetic to the employer’s need to take swift and decisive action to punish sexual harassment. But the arbitrator also noted that this case was "somewhat different from the ‘usual’ type of cases." First, he said, the employer itself set in motion the events giving rise to the termination by supplying the alcohol to the employees. While the fact that the employer supplied the alcohol did not absolve the sales rep for his conduct in drinking to excess, it did impact whether just cause existed for termination.

Other mitigating factors. In addition, the sales rep had a good prior record. He showed contrition at the hearing. Moreover, the employer policy applying to this situation did not mandate termination; it only provided for discipline up to and including dismissal.

As a result, the arbitrator sustained the grievance, ordering that the sales rep be reinstated. He also ordered that the reinstatement be without back pay, in effect converting termination into an unpaid suspension lasting from termination to reinstatement. This result, the arbitrator concluded, was a fair and equitable decision flowing from these "unique facts and circumstances."

Attorneys: Andrew L. Gniewek (Morgan Lewis Bockius) for Aramark Uniform & Career Apparel. Howard S. Susskind (Sugarman & Suskind) for Teamsters Local Union No. 769.

Companies: Aramark Uniform & Career Apparel

Cases: Labor Arbitration Discharge SexualHarassment

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