'You can't jeopardize the safety of a co-worker at any time or in any place': lawyer
“There's no reason legally why the employer can't impose discipline for off-duty conduct - at the end of the day, off-duty conduct is fair game for an employer to investigate if it jeopardizes the safety of a co-worker.”
So says Joseph Oppenheim, a labour and employment lawyer at Carbert Waite in Calgary, after that city fired a transit worker for sexually assaulting a co-worker.
“In the case here, this is a sexual assault, so it's fair game,” says Oppenheim. “The conduct would tend to cause the employer to suffer damage to its reputation so there is no issue [for discipline].”
Offered car for sale
The worker was a bus operator for Calgary Transit, hired in 2004.
The worker met a female co-worker in his training class and they became friendly, greeting each other whenever they ran into each other over the years. The worker considered them to be friends, but they didn’t socialize or communicate outside of work.
In the summer of 2020, the worker told the co-worker that he had been thinking of her since she didn’t have a car and he had one that he could sell her for $500. The co-worker agreed to go for a test drive.
In late August, the worker took the co-worker to his uncle’s business where the car was parked to take it for a test drive. According to the co-worker, as she was driving with her right hand on the shifter, the worker placed his hand on top of hers and held it. She removed her hand and said that she wasn’t interested in having an affair with him. The worker said that they should be “friends with benefits,” to which the co-worker replied that she wasn’t interested in having sex with him or helping him cheat on his wife.
After the test drive, the worker’s uncle said he wouldn’t sell the car for $500. The worker drove the co-worker home and asked her whether she was going to invite him into her house. The co-worker said no, but she wanted to leave things on a good note. She reached over to give him a quick hug but, according to the co-worker, the worker reached up and stroked one of her breasts. She quickly got out of the car.
About one week later, the co-worker called the worker about the car. The worker said that he sold it to someone else and the co-worker told him that he had made her uncomfortable during the test drive. The worker said that he would hate to have anyone else find out it and apologized for making her feel uncomfortable. The co-worker considered this to be the end of the matter.
An employee’s sexual harassment was not serious enough for dismissal and the employer’s poor handling of it warranted aggravated and punitive damages, a BC court ruled.
Co-worker told supervisor
About nine months later, in June 2021, the co-worker’s supervisor asked her about her search for a car. The co-worker told him about the test drive, mentioning that she believed that the car had been priced so low because there were sexual strings attached and the worker had touched her in appropriately.
The supervisor asked the co-worker if she wanted to pursue the matter, but she didn’t because the incident had occurred after work. However, the supervisor discussed it with his supervisor and they reported it to the human resources department.
Although the co-worker didn’t want to pursue the matter, it was reasonable for the city to consider taking action, says Oppenheim.
“You can't jeopardize the safety of a co-worker at any time or in any place,” he says. “The employer has obligations not only to to the victim, but also to the workplace and all the other employees… under the Occupational Health and Safety Act.”
Employees who work in industries that experience a large amount of sexual harassment are less likely to identify clear violations, a recent study found.
Worker denied everything
The city told the worker that he was being suspended with pay pending the investigation of a sexual harassment complaint.
In an investigative interview, the worker said that he thought the co-worker was anxious during the test drive so he put his hand on hers to calm her down. He denied asking her to be “friends with benefits” or proposing a sexual relationship. He also denied asking her about inviting him inside or touching her breast. However, he acknowledged apologizing for making her uncomfortable.
The investigation report concluded that the worker breached the city’s labour relations policy dealing with off-duty conduct, which stipulated that an employee could be dismissed if off-duty conduct resulted in significant or irreparable damage to the employment relationship.
The city terminated the worker’s employment on Aug. 31, 2022.
The union grieved the dismissal. In his testimony, the worker acknowledged asking the worker to be “friends with benefits,” but he said that he thought the phrase meant being close friends, not anything sexual. He also acknowledged saying that they could “fool around,” but again he thought it wasn’t a sexual comment and it was “just like a joke.”
The worker testified that he asked the co-worker if she was going to make coffee for them, but he denied touching her breast. He said he could have accidentally done so in the hug, but he didn’t think he had.
Many Canadian workers are unhappy with the actions taken by their employers regarding workplace harassment, according to a survey.
Worker lacked credibility
The arbitrator found that the co-worker was consistent in her version of events and had no reason to lie, as she was friendly with the worker. In addition, she didn’t want to pursue a complaint – it was her supervisor who initiated the process, the arbitrator said.
On the other hand, the worker had motivation to protect his employment and his version was inconsistent. In his interview the worker denied everything, but then later acknowledged making the “friends with benefits” comment and asking the co-worker if she was going to invite him inside. His outright denial of touching the co-worker’s breast also changed a possible accidental touch, said the arbitrator.
The arbitrator also found it was unlikely that the worker didn’t know that both “friends with benefits” and “fooling around” didn’t have sexual connotations. If his intentions were innocent, it didn’t make sense that he would lie during his interview, the arbitrator said.
In determining credibility, common sense prevailed, says Oppenheim.
“The [worker] had a problem right off the bat that he lied during the investigation, so credibility at that point is already in jeopardy,” he says. “The [worker’s] testimony wasn't plausible and it wasn’t internally consistent, so he sunk himself, he couldn't keep the story straight, and he made ridiculous statements in answering questions.”
The arbitrator also found that, since the worker made sexual advances and refused to take “no” for answer, it was plausible that he touched the co-worker’s breast without her consent.
Many organizations may be caught off-guard when sexual harassment happens in their workplace, says an HR lawyer.
Impact on employment relationship
The arbitrator noted that it has been established that “certain activities such as assault or sexual harassment even in off-hours will have a direct bearing on most employment relationships and can support serious disciplinary penalties, including dismissal.” In addition, the city’s labour relations policy indicated that off-duty conduct justified discipline if it harmed the city’s reputation, made other employees reluctant to work with an employee, or breached its trust.
Given that transit operators were expected to be ambassadors for the city and worked closely with the public with little supervision, off-duty sexual harassment and assault by one operator on another could harm the city’s reputation, and it would also likely make other workers, especially female ones, reluctant to work with him, said the arbitrator.
The arbitrator noted that the worker’s 17 years of discipline-free service and his apology did not outweigh the “very serious workplace misconduct.”
The arbitrator determined that the worker’s misconduct justified discipline. Since sexual harassment and assault was serious misconduct that risked workplace safety and the worker didn’t show “true insight into his behaviour nor truly accepted responsibility,” dismissal was appropriate, the arbitrator said.
“When you commit any kind of an assault against a co-worker, whether on-duty or off, you are jeopardizing the safety of your co-worker and the workplace,” adds Oppenheim. “You now have someone who has proven to be a dangerous person who's free to commit further misconduct against an employee or others, so there's at least an obligation on an employer in these circumstances to conduct a workplace investigation in order to meet its obligations under the Occupational Health and Safety Act in Alberta.”
See Corporation of the City of Calgary v. Amalgamated Transit Union, Local 583, 2023 CanLII 20867.
