Worker’s firing for sexual harassment upheld by Alberta arbitration board

An Alberta health-care worker’s dismissal without progressive discipline was justified after the worker sexually harassed two coworkers and failed to acknowledge the seriousness of her misconduct, an arbitration board has ruled.

The worker was a health-care aide for Alberta Health Services (AHS) at a seniors’ residence in Brooks, Alta. since 2012.

AHS employees were covered by a collective agreement that required just cause for discipline and dismissal. AHS also had a workplace violence policy that defined workplace violence as “any act in which a person is abused, threatened, intimidated or assaulted in his or her workplace” including non-physical abuse or harassment.

One day during the week of April 8, 2019, the worker walked up to a housekeeper, leaned over, and grabbed the housekeeper between the legs in the crotch area. When the housekeeper asked what she was doing, the worker replied: “It’s OK, it’s just in fun.” Afterwards, the housekeeper tried to avoid the worker when she encountered her.

On April 17, the same housekeeper was speaking to a resident and saw the worker approach her and gesture as if she was going to do the same thing as before. The housekeeper retreated into an adjacent room and said not to touch her again. The worker answered again that it was all in fun. Another housekeeping employee witnessed the interaction.

The second incident was caught on surveillance video, which depicted the worker approaching the housekeeper and the latter retreating into the next room.

The following week, on April 23, the worker came up to a second housekeeper as the latter filled up her cart. The worker told the second housekeeper that she liked her shirt, after which she got close and touched the housekeeper’s crotch. The housekeeper got upset, pulled back and said, “Whoa.” The worker then laughed and went down the hall. This incident was also caught on video.

AHS investigated complaints about the incidents — both housekeepers said they felt violated and didn’t want to work with the worker again. The worker said she didn’t recall touching the first housekeeper in the first incident. In the second incident, she said she just touched her elbow and was laughing because they were “just joking around.” When showed the video of the second incident, she said it was too dark and she didn’t recall anything.

As for the third incident, the worker said she was admiring the second housekeeper’s shirt and touched her accidentally with her knuckle, but she couldn’t say where she touched her. She said she ran away because she was surprised but came back, offered her a high-five and touched her shoulder in case she was upset. The video depicted the worker skipping away laughing but the worker couldn’t say what the joke was.

Ultimately, the worker couldn’t explain why such allegations would be made about her if they weren’t true. AHS terminated the worker’s employment on May 22, 2019. The union argued there wasn’t just cause.

The arbitration board found that the accounts of the complainants and witnesses were consistent with each other and the video footage of the second and third incidents. The worker’s explanation for all of them wasn’t credible and she showed no sensitivity to the housekeepers during the incidents or afterwards, said the board.

The board also found that AHS had a clear policy in place that the worker understood. As a result of this and her conduct, the worker deserved discipline.

Although the collective agreement had a progressive discipline provision, it allowed for the skipping of steps if the misconduct was severe.

The board found that the nature of the worker’s responsibilities, her lack of sensitivity and remorse and the seriousness of her actions warranted termination, despite her seven years of good service.