Sexual harassment of cleaning staff not enough to warrant dismissal: Arbitrator
An Ontario worker who was fired for sexually harassing a building cleaner has been reinstated by an arbitrator.
The worker was a mail room clerk for the Professional Institute of the Public Service of Canada (PIPSC), a union representing scientists and professionals employed with various levels of government, at PIPSC’s head office in Ottawa.
The clerk’s duties took him all over the building, where he became familiar with the building’s cleaning staff, who worked for a cleaning contractor. He often engaged in sexual banter with the cleaning staff, including two particular female cleaners. Whenever he encountered either of them alone, he would blow her a kiss and sometimes grab her buttocks. This behaviour went on for about five years — the clerk started working at the building in 2006 — despite the cleaners asking him to stop. Neither complained about it as they were afraid of losing their jobs.
On June 14, 2012, one of the female cleaners went to the basement to get a mop and pail so she could clean a mess on the ground floor. She ran into the mail room clerk in the elevator and he tried to kiss her. When she pushed him away, the clerk grabbed her buttocks.
After cleaning up the mess, the cleaner reported the incident in the elevator to the building manager, indicating she didn’t want him fired, just for him to stop. The building manager reported it to PIPSC, who placed the clerk on administrative leave with pay for the next two days. When interviewed, the clerk claimed the cleaner consented to the behaviour and had done so for a while. The cleaner was interviewed and denied she had consented to it.
PIPSC determined the clerk was lying about the cleaner’s consent and terminated his employment on June 20, 2012.
The arbitrator found the clerk’s misconduct was serious and, though he admitted to it, he tried to downplay its effect by saying the cleaner was a willing participant. However, the arbitrator noted the cleaner didn’t want him fired. Also, the clerk had apparently stopped harassing the other female cleaner when she “showed him her fist and made it clear he had gone too far.” It was reasonable to assume he would stop his behaviour towards the other cleaner now that he knew how serious it was considered, and save the employment relationship, said the arbitrator.
