Specialist reinstated after false harassment charge

An Alberta employer must reinstate a worker who was fired for sexual harassment and pay her $20,000 in aggravated damages after a flawed investigation with no credible evidence of misconduct, an arbitrator has ruled.

Vision Loss Rehabilitation Alberta (VLRA) is a provider of services to blind and partially sighted individuals. Jennifer Belyea joined VLRA in 2017 in the roles of orientation and mobility specialist and low vision specialist.

In the summer of 2019, VLRA lost government funding and it had to lay off 11 employees beginning on Sept. 5. Belyea was one of those employees and VLRA provided her with working notice and severance pay.

However, VLRA failed to inform Belyea that, under the collective agreement, she had the right to bump an employee with less seniority. It eventually did so on Sept. 11, and Belyea took several days to consider her options. On Sept. 17, she told VLRA that she would like to bump into the position of specialist service coordinator. The employee in that position, who had less seniority than Belyea, was informed that she was being bumped into a layoff two days later.

On Sept. 20 and 21, the bumped employee and two of her friends — one who was a VLRA employee and another who worked for the Canadian National Institute for the Blind (CNIB), with whom VLRA worked closely — filed sexual harassment complaints against Belyea.

VLRA suspended Belyea with pay before she could start in her new position and investigated. It didn’t give her details, only saying it had “received multiple allegations from staff members outlining behaviour… in violation of our Workplace Anti-Violence, Harassment, and Sexual Harassment policy.”

Belyea was shocked by the allegations as she had no idea there were any concerns. When VLRA interviewed the complainants, they said Belyea had made inappropriate comments to a male colleague and a male CNIB intern related to their appearance in the summer of 2018, had hugged them, and had made sexually-themed jokes. Neither of the alleged victims said they had been sexually harassed — they were on friendly terms with Belyea and were willing participants in any hugging and joking. Belyea denied sexually harassing anyone.

However, VLRA determined that Belyea had sexually harassed the male colleague and the intern. It terminated her employment on Oct. 16 for breaching the sexual harassment policy. The union grieved the termination, claiming that VLRA violated the collective agreement’s provisions prohibiting discipline or termination without just cause and requiring progressive discipline.

The arbitrator noted that “there is a wide range of conduct that may be considered sexual harassment” and the conduct must be “either sexual or gender-based in nature and unwelcome” to constitute sexual harassment.” In this case, neither of the alleged victims made complaints nor did they believe they had been sexually harassed, said the arbitrator.

The arbitrator found that the credibility of the complainants was lacking. They were friends with each other and one of them had been bumped from her position by Belyea, so there was motivation to remove Belyea from her employment. In addition, the timing was suspicious and suggested coordination — the complaints were similar, were made within two days of the bumped employee learning of her layoff and were made much later than when the alleged harassment happened.

The arbitrator found that Belyea hugged and joked with other employees “in consensual and platonic terms” but none of it was unwelcome. Therefore, it didn’t amount to sexual harassment, said the arbitrator.

The arbitrator determined that VLRA did not have just cause to dismiss Belyea and ordered the organization to reinstate her with compensation for lost wages. VLRA also had to pay $20,000 in aggravated damages for an unfair investigation that caused “suffering greater than the normal distress one would experience during termination of employment.”