Says arbitrator focused on factors ‘that are not current with present-day analysis of sexual assault and inconsistent with the evolving attitudes of what is acceptable at work’
Social norms change over time, as seen with the #MeToo movement, which means expectations and perceptions just aren’t the same when it comes to the workplace and harassment.
That was apparent in a recent decision from the Court of Appeal of Alberta, which disagreed with an arbitrator’s decision regarding the termination of a male employee who sexually assaulted a female employee.
The case is interesting because the court talked a lot about norms in society and how society is taking a stand against sexual harassment, says Tessa Gregson, a lawyer at Field Law in Edmonton.
“Some of those social shifts and social change and what we expect of workplaces is now being incorporated in the legal analysis, and while I think that perhaps may have always been the case, I think it’s much more clear in this case that that is something to be incorporated, especially when they talk about… myths around sexual assault and the impact on the victim or the complainant.”
An arbitrator is always going to look at arbitral jurisprudence to assess the range of discipline and what is reasonable, along with the facts and context, she says.
“But the Court of Appeal is saying, ‘OK, but we’ve changed, society has changed. And so you, therefore, need to look at the jurisprudence or the case law with almost a grain of salt or with an eye to the fact that does this case still reflect the current societal view on sexual harassment in the workplace?’”
Background on case
The case involved a City of Calgary employee who was terminated after an investigation determined he had grabbed and squeezed a female employee’s breast without her consent. The city found that the allegation was substantiated and the misconduct constituted a very serious breach of its respectful workplace policy.
The city did not implement progressive discipline because the man had failed to acknowledge any inappropriate behaviour or apologize for the conduct. The employer also concluded it was not safe to return him to the workplace because it could not trust him to be honest about his conduct.
Initially, the employee had denied any physical contact, but after discussions with the union representative, he admitted to touching “of an innocent nature.”
The Canadian Union of Public Employees, Local 37, grieved the termination. Ultimately, the arbitrator agreed with the union, using the three-part test set out in the 1976 decision Wm. Scott & Company Ltd. and Canadian Food and Allied Workers Union, Local P-162 for assessing termination grievances: Was the employee given reasonable and just cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the worker an excessive response? If the arbitrator considers the discharge excessive, what alternative measure should be substituted as just and equitable?
The arbitrator concluded that the misconduct was at the lower end of the sexual harassment spectrum because it was a single incident, the woman did not appear to be traumatized in any significant way, there was no evidence the incident was anything but an impulsive, ill-thought-out incident and there was no evidence of any persistent conduct that would be considered as creating a hostile or unsafe environment.
The male employee also had a long service record, a clean disciplinary record and would face economic hardship. And the arbitrator concluded that the risks of returning the man to the workplace were minimal, plus the two employees worked in different locations.
She concluded that a lesser disciplinary response was justified and directed the city to reinstate the employee without a loss of seniority, following a suspension of nine months without pay.
After the city applied for judicial review, the reviewing judge found that the arbitrator’s decision-making process was justified, transparent and intelligible.
But in October 2019, the Court of Appeal of Alberta disagreed. For one, it felt the decision under the second element of the Wm. Scott test was unreasonable. The court also felt that the arbitrator downplayed the seriousness of the misconduct, as it was sexual assault.
The arbitrator did not specifically call the misconduct a sexual assault, preferring instead to call it a “personal assault,” “incident,” “contact” or “conduct,” said the majority of the court of appeal (there was one dissenting vote).
“The words chosen suggest an attempt to minimize the type of misconduct… it was unreasonable for the arbitrator to use ambiguous and vague language to analyze the misconduct.”
The court of appeal also found that the arbitrator didn’t adequately consider the interests of all employees when it came to the man returning to the workplace.
“The fact that there was no pattern of misconduct or that this was an isolated incident does not lead to the conclusion that future co-workers could be confident or assured of a workplace free of such incidents in the future,” it said.
The court of appeal also looked at the arbitrator’s decision that the misconduct fell into the category of “sexual annoyance” harassment, based on the book Sexual Harassment in the Workplace by Arjun Aggarwal.
“Whether the misconduct is sexual annoyance or sexual coercion provides little guidance to arbitrators about whether the misconduct is serious or not… The arbitrator’s categorization led her astray and caused her to focus on factors that are not current with present day analysis of sexual assault and are inconsistent with the social context and the evolving attitudes of what is acceptable in the workplace,” said the court.
“A finding that sexual assault is serious misconduct is consistent with the growing concerns for safety and respect in the workplace and other policies and legislation whose goal is to protect vulnerable groups, and it will assist employers and unions in fighting against the prevalence and damaging effect of this intolerable conduct... It is objectively clear that sexual assault is wrong and acknowledging that sexual assault is serious misconduct sends a strong message to all employees about societal values and acceptable workplace behaviour.
The court of appeal takes a very holistic look here, says Gregson. And while you still have to apply proportionality, in looking at the Wm. Scott case for example, and context is still going to be important when looking at discipline in these cases, “they’ve massaged the context and really brought to light that this is the context in which the law is being applied,” she says.
“I haven’t often seen the court come out and say that ‘because society has changed, we almost need to switch the lenses in our glasses.’”
The case sheds light on the different viewpoints of decision makers as history unfolds and events overtake us, says Sari Springer, office managing partner at Littler in Toronto.
“Back in 2016, when the arbitrator initially heard the case... it was really before the #MeToo movement had any traction. And, so, I suppose at the time perhaps it wasn’t quite so alarming. But then as the #MeToo movement got more traction and this issue became far more salient, then I think cooler heads prevailed. And, finally, the Court of Appeal recognized that ‘Come on, this is sexual assault, it’s got to be a zero tolerance assessment and the termination was not excessive. And the city did the right thing.’”
That’s not to say that the court took judicial notice of the #MeToo movement — that wouldn’t be appropriate legal analysis — but any decision-maker is going to be influenced by not only the law but the social context, she says.
“They don’t live under a rock. And, so, I think they do need to be more attuned to how these events are perceived. So, when the arbitrator way back when was initially analyzing it, she said, more or less, ‘Oh, it’s just a one-time occurrence. And the grievor otherwise had an unblemished record, and the victim didn’t really seem too upset about it.’ And, so, basically, the bottom-line analysis was the termination was too excessive, which is certainly not the take of the Court of Appeal.”
It’s not rocket science, but even a one-time incident of sexual harassment can be egregious enough to warrant a dismissal, says Springer.
“That’s the takeaway… There will be many circumstances where a one-time occurrence will not justify a dismissal and that’s more or less the norm. But when there’s an egregious act, and even if it’s a one-time occurrence and the employee otherwise has an unblemished record, it just shouldn’t be condoned. Basically, it’s what the court is saying.”
However, this decision does not necessarily establish that dismissal is the automatic penalty for sexual assault, says Gregson.
A central issue to this case was the fact that the male employee wouldn’t admit to his misconduct, so there was dishonesty at play, says Gregson.
“They explicitly say the common law and statutory obligation to provide a safe workplace is a contextual factor. So, dishonesty is not just aggravating in looking at the character of the grievor and whether or not dismissal was the correct sanction to put into place, but you can also look at it to say, ‘Well, this is the context in which this is happening. Can the employer return this person back to the workplace and guarantee all employees, not just the grievor, a safe workplace?’”
In addition, the arbitrator focused more on the impact on the woman and the fact that the two employees wouldn’t really work together in the future, she says.
“[She] didn’t take a broader perspective of ‘Given the grievor’s conduct, can the city as the employer place that person back into the workplace and have a more general confidence that they’re still providing a safe workplace?’”
Preventively, there’s only so much an employer can do, but having a good policy, and revisiting that policy — looking at the definitions for harassment or misconduct, for example — is important, along with doing annual reviews with employees, says Springer.
That’s evident in this case where the grievor was dismissed in part because of the breach of the policy, she says.
“It’s [about] emphasizing the culture of your employer and what you will and will not condone, and so that goes to the OHS aspect as well. But it also then will help you through the application right through any sort of investigations you’re going to go through. And then if you need to do any sort of sanctioning, then you can reference that pulse, you have that touchstone [where] you’ve made a definition, you’ve taken a stand and your employee knows what to do and not to do.”
As for the investigation, sometimes, the most difficult part is the credibility assessment, says Springer. “You need to make findings of credibility and then determine whose version of events is more plausible based on the balance of probabilities.”
When it’s a he said/she said situation like this one, it’s often about gathering surrounding or circumstantial information to help corroborate a witness, she says. That can mean talking to people the victim communicated with shortly after the incident or having the victim substantiate that they went to see a mental health expert because of the incident.
“It’s often the surrounding circumstances that help to inform me about the credibility issues,” says Springer.
“Because… oftentimes, in these incidences, it’s just two people in a room. And you don’t have the smoking gun, so to speak, of a witness who would have been able to be right there to corroborate one way or the other.