Sexual harassment and the perils of failing to manage workplace decorum

The recent arbitration decision in Canadian Union of Public Employees, Local 1418 v. New Brunswick (Justice and Public Safety), highlights the dangers in failing to confront employee "bad" behaviour and being lax with policy enforcement and training.

The employee, Kevin Kelly, was a parole officer employed by the Province of New Brunswick. Kelly was accused of violating the employer’s workplace harassment policy; specifically by engaging in sexual harassment and in creating a "poisoned work environment." Approximately seven witnesses, who were co-workers of Kelly, gave testimony at the arbitration specifying detailed incidents of sexual harassment. The conduct constituting sexual harassment was described as follows:

• Kelly asked for a condom in the workplace
• Kelly talked about his estimated penis size to a student on work placement
• Kelly inappropriately touched a co-worker’s groin
• Three separate instances where Kelly was observed in his office, during work hours, wearing only his boxer shorts
• Kelly discussed how his girlfriend’s bottom looked in the moonlight
• Kelly engaged in inappropriate sex talk with a student.

Upon receipt of complaints, the employer initiated an external investigator to conduct an independent investigation into the allegations of sexual harassment. The investigator concluded that the claims were substantiated and Kelly had been in violation, on a number of occasions, of the employer’s workplace harassment policy. As a result, Kelly was terminated for cause. The dismissal was grieved by Kelly and his union, CUPE.

The arbitrator concluded that dismissal was not justified, issued a five-month suspension ("time served" since his dismissal) instead and reinstated Kelly, with re-assignment to another office location. In coming to this conclusion, the arbitrator noted key failures on the part of Kelly’s provincial employer:

• Kelly was never educated or trained and denied having ever been directed to read the employer’s workplace harassment policy
• During the Investigation process, Kelly was not given details surrounding the specific particulars of the complaints made against him
• The arbitrator found a permissible "workplace culture" of sexualized interactions amongst staff, for example, the employer had tolerated several employees (including, but not limited to Kelly) engaging in sexual banter on an ongoing basis in the workplace 
• The employer offered no training, education or prior disciplinary measures to address or counter what the arbitrator deemed the “barnyard” office culture 
• The employer’s delay in addressing his behaviour prejudiced Kelly, because he could no longer remember certain events and alleged misconduct of which he was accused.

Independently, Kelly had an acknowledged “depressive condition,” which the arbitrator found should mitigate his misconduct.  For all these reasons, the arbitrator held termination was too severe of a penalty.

The arbitrator was clear that no form of workplace sexual harassment is ever appropriate. It was also evident to the arbitrator that, given the nature of the misconduct and the fact the victims had testified against him at the hearing, Kelly could never return to the same office setting, since the relationship between Kelly and his co-workers had been destroyed. Despite finding errors in the employer’s management of the workplace, the arbitrator acknowledged that Kelly’s acts went beyond the sexualized and unprofessional “office culture” that had been permitted to exist and his behaviour was, indeed, deserving of punishment and sanction. As such, instead of termination, a five-month suspension, without pay, was substituted by the arbitrator.  This time-frame was equal to “time-served” during the period from his dismissal to the Arbitrator’s reinstatement.  Reinstatement also included conditions that Kelly continue psychological counselling, attend sensitivity training and be re-assigned to an alternate office location with different staff. 

What this means for employers

Workplace harassment policies are most often imposed unilaterally by management. Policies that are imposed by management and not agreed to or negotiated with the union are valid, as long as the policy conforms to the following six conditions as articulated in KVP Co. v Lumber & Sawmill Workers’ Union, Local 2537:

1. It must not be inconsistent with the collective agreement
2. It must not be unreasonable
3. It must be clear and unequivocal
4. It must be brought to the attention of the employees affected before the company can act on it (e.g. by training, education and review)
5. The employees concerned must be notified that a breach of the policy could result in discipline, up to and including discharge
6. It should be consistently enforced by the company from the time it is introduced (e.g. by training, education and review).

Note: While these conditions are necessary in a unionized setting to permit policy enforcement, they provide useful guidelines to follow for good management of policies in all workplaces.

The employer in Kelly’s case had turned a blind eye to a workplace “culture” that tolerated regular sexual jokes and lewd, unprofessional behaviour. Based on the evidence, the employer had not properly managed the unruly workplace in a manner required by human rights legislation, the collective agreement, or common sense. Although by most standards Kelly’s conduct crossed the line of proper decorum and professionalism, in his workplace, such a line had not been made clear. An employer will not be permitted to accept a sexualized environment for years and then suddenly terminate one employee for such misconduct.  Employers need to take a consistent, uniform and ongoing approach to denounce and prevent sexual harassment in their workplace by education, training and good management.    

Employers wishing to rely on workplace policies such as a harassment policy must reinforce the rules and ensure employees are trained to understand them and are disciplined promptly and consistently when violations occur.

For more information see:

• Canadian Union of Public Employees, Local 1418 v. New Brunswick (Justice and Public Safety) (July 28, 2016), Robert D. Breen - Adj. (N.B. Arb.).
• Lumber & Sawmill Workers’ Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.).

Leah M. Ferguson is an associate with Cox and Palmer in Fredericton, focusing on employment and labour law, family law, and litigation. She can be reached at (506) 462-4768 or [email protected].