Termination warranted for sexual harassment

A nurse at a long-term care facility was fired for sexual harassment following an employer investigation into allegations made by another staff member at the facility.

X was a 54-year-old Registered Nurse and amateur triathlete employed at Osprey Care. He was hired in February 2009.

Y, aged 24, was a receptionist at the 98-bed facility. She was hired in 2010.

On October 12, 2010, X was suspended after police notified the employer that criminal charges had been laid against X. The charges were laid in response to allegations arising from an incident that occurred after working hours at Y’s house.

The employer undertook its own investigation and interviewed Y on November 9. X refused the employer’s initial interview request while the charges were still pending. However, he did attend an interview on December 14, after the Crown had decided not to proceed with the charges.

Y provided the employer with a copy of the report that she had filed with police. The report detailed two incidents of unsolicited physical contact at the workplace on October 4 and 5 when, Y said, X “proceeded to slap my butt.”

Y also charged that on October 6 after 11 p.m., X showed up unannounced and uninvited at her parent’s house where she was staying. Y said that after she answered the door, X forced his way into the house and molested her. Y said that X repeatedly clutched at her. She said that he overpowered and then pinned her. Y said that X forced kisses on her and that he pulled up her shirt and groped her breast. Y continued to resist and X retreated after warning her not to tell anyone at work about what had happened.

Overtly flirtatious

There some were points of difference in their respective stories. X denied slapping Y on the butt while at work but he did not deny that he engaged in overtly flirtatious behaviour with her. He also asserted that Y had called him while he was at work on the evening of October 6 and invited him to come over after his shift. Their accounts of what happened after X showed up at Y’s house were substantially the same. However, X maintained that the contact was consensual and that Y was attracted to him such that she “couldn’t control herself.”

In the course of its investigation, the employer became aware of a previous Consent Agreement between X and another employer and the provincial college of Registered Nurses that placed restrictions on X. The employer requested full disclosure. X refused.

In an effort to resolve X’s employment status, the employer engaged a neutral third party to conduct an independent investigation and broker a mediated settlement. That process was completed but the parties were still unable to come to a resolution.

The employer made a further attempt to settle X’s employment status at a meeting on Oct. 11, 2011. X continued to refuse to disclose the circumstances behind the previous Consent Agreement. He continued to deny all the charges made against him by Y.

X was fired. The union grieved the termination.

“Self-delusions”

The union argued that whatever happened between X and Y happened outside the workplace and it did not involve the employer’s interests. The union said there was no reason to discount X’s version of events. The incident was a matter between two adults. Police investigated and charges were later dropped. The union said that the employer had no basis upon which to make a determination that the behaviour was not consensual. The union said that X should be reinstated with full compensation.

The Arbitrator disagreed.

The Arbitrator said that X’s “self-delusions” were the only explanation for his assertion that what happened that night was consensual. His story was not credible.

The Arbitrator rejected the union’s argument that the incident did not concern the employer. “In my view, on the basis of the evidence before me, the employer had the right, if not the obligation, to investigate the matter, and if necessary, to apply discipline. The sexual harassment began in the workplace.”

The only point of contact between X and Y was the workplace. X acknowledged flirting with Y at the workplace.

“In the circumstances, I cannot accept the union’s position that this was a private encounter between two individuals that had nothing to do with the workplace.”

The Arbitrator said that termination was appropriate.

“[X] has been untruthful in giving his evidence, most obviously, in insisting that what happened in the house was consensual. He has exhibited no remorse or expressed any sympathy for [Y] for what he did to her or to his employer for the position he has put the employer in. He remained unco-operative and unapologetic throughout the employer’s investigation. He refused to co-operate with employer in supplying information as to the reasons for the restrictions on his license imposed by [the College]. In the arbitration hearing, he insisted the complainant was so attracted to him that she was the instigator of the event. In the circumstances, I can find no proper basis for concluding that the behaviour of the grievor can be corrected and that a viable employment relationship can be restored. Simply put, the grievor refuses to take responsibility for his actions and as a consequence, rehabilitation of the employment relationship is not possible.”

The grievance was dismissed.