Arbitrator found misconduct wasn’t serious enough to warrant dismissal, but appeal court said it should have been considered sexual assault
An Alberta arbitration decision that reinstated a worker who sexually harassed a co-worker has been struck down by the province’s Court of Appeal on the basis that the arbitrator didn’t properly consider the seriousness of the misconduct.
The City of Calgary has a Respectful Workplace Policy that includes a prohibition of sexual harassment, describing it as “comments or conduct such as: unwelcome advances, requests, comments, physical contact such as unnecessary touching, pinching or jostling or gestures that are suggestive or persistent staring that are of a sexual nature.”
A female city employee complained that a male employee had grabbed and squeezed her breast without her consent. The city investigated the complaint, interviewing both the complainant and the accused employee.
The accused employee worked in a different area and didn’t have much contact with his accuser. He initially denied doing anything wrong. However, after some discussion with a union representative, he admitted to “touching of an innocent nature.”
The city determined that the complaint was true and considered the accused employee’s behaviour a serious breach of the Respectful Workplace policy. Although the accused worker had a long service record with no prior discipline, the city skipped progressive discipline because it felt it couldn’t trust him to be honest about his conduct — the worker failed to acknowledge doing anything wrong and didn’t offer an apology. The worker’s employment was terminated for cause.
An arbitrator agreed that the complaint was credible and the worker committed the misconduct while also being dishonest about it in the investigative interview. However, the arbitrator found that termination was excessive.
No serious harm from harassment: arbitrator
The arbitrator found that the misconduct was at the “lower end of the sexual harassment spectrum” because it was a single incident that appeared to be impulsive, the female employee didn’t appear to be significantly traumatized and there was no evidence of persistent conduct that would create an unsafe work environment.
The arbitrator also found that the misconduct fell more toward the category of “sexual annoyance” rather than “sexual coercion” — categories developed in the 1987 textbook Sexual Harassment in the Workplace by Arjun P. Aggarwal — as there were no direct consequences to the victim’s employment status.
The arbitrator also noted that it was unlikely such an incident would happen again because there was no pattern of similar behaviour and the worker had little contact with the victim. With the worker’s long service record and no prior discipline, the arbitrator concluded that there should be discipline short of termination. The city was ordered to reinstate the worker with a nine-month suspension and the worker was ordered to attend orientation training on the Respectful Workplace Policy.
The city appealed, but the reviewing judge determined that the arbitrator’s process for reaching her decision was “justified, transparent and intelligible” with an outcome that was “within the range of possible, acceptable outcomes based on the facts and law.”
The city appealed to the Alberta Court of Appeal. The city disagreed with the characterization of the worker’s misconduct as on the lower end of sexual harassment. In addition, it said more weight should have been given to the worker’s dishonesty and failure to accept responsibility for his actions, which should run contrary to the conclusion that there was minimal risk in returning him to the workplace.
Physical touching is sexual assault: court
The court noted that “sexual harassment in the workplace is unacceptable because it is an abuse of both economic and sexual power.” It also recognized that courts and arbitrators have often found that sexual harassment with a physical component takes it to the next level and should be considered sexual assault — the most serious form of workplace misconduct.
The court pointed out that the arbitrator didn’t refer to the worker’s misconduct as sexual assault but instead used words such as “incident,” contact” or “personal assault.” This language minimized the misconduct, the court said.
“There can be no doubt that the grabbing and squeezing of another’s breast without consent is sexual assault,” the court said. “Even using the umbrella term of ‘sexual harassment’ to describe what happened downplays the significance of the arbitrator’s finding, since ‘sexual harassment’ is an all-encompassing term that includes a broad range of conduct, some of which is very serious (like sexual assault) and other conduct less so.”
The court also found that the categorization of the misconduct as sexual annoyance should have had no bearing on determining the seriousness of it. The categories in Aggarwal’s textbook were meant to “simplify certain definitions of sexual harassment in the human rights context,” not to provide “a hierarchy of sexual harassment or value judgement about which type of conduct is worse,” said the court in noting that the link to any tangible job benefit shouldn’t reflect the seriousness of the misconduct.
The court found fault with the arbitrator’s determination that the misconduct was less serious because the victim didn’t appear to be traumatized. This went against multiple studies about sexual harassment in Canada, the fact that victims are overwhelmingly women, economically vulnerable women are more at risk and employers and unions have been struggling to get rid of sexual harassment in the workplace for a long time.
The court also found that sexual assault brings safety concerns to the workplace and this provided a good reason for the city to forego progressive discipline. When the worker was dishonest about his misconduct and refused to accept responsibility, the city reasonably believed it couldn’t trust him not to do it again, which would compromise its legal obligation to provide a safe workplace. In addition, the arbitrator focused only on the risks to the victim of returning the worker to the workplace rather than all employees who could be subjected to similar behaviour.
The court determined that the arbitrator’s decision did not fall within a range of acceptable outcomes in respect of the facts and the law, given that the misconduct should have been considered sexual assault — for which termination is normally considered appropriate discipline. The court remitted the matter for rehearing before a different arbitrator.
For more information, see:
• Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388 (Alta. C.A.).
