Arbitration highlights why Canadian employers must make harassment training stick far beyond policy signoffs
When a long service Sunwing Airlines pilot was fired for sexually harassing a flight attendant during a resort layover, the arbitrator’s ruling did more than uphold the dismissal – it sent a clear message that signed policies and online modules are not enough to shield employers if workers don’t genuinely understand harassment rules.
In Sunwing Airlines Inc. (WestJet) v Unifor, Local 7378, a senior captain with more than 16 years’ service lost his job after a single evening of escalating sexualized conduct toward a flight attendant during a resort layover. The decision upheld discharge despite his length of service, clean disciplinary record and the fact that he had taken the employer’s harassment training several times over his career.
Toronto employment lawyer Natalie C. MacDonald of MacDonald & Associates says the case shows both what the employer did reasonably well and where training can still fall short.
“It appears that the employer did a fairly decent job of being able to train the employee,” she says.
“However, the fact that he only had three trainings in a 16-year career is a problem.”
Designing training that actually teaches, not just informs
MacDonald says employers cannot lean on a bare policy and a signature and expect to be protected. Rather, she says training should be built into the employee life cycle and treat it as a recurring obligation rather than a one-off document.
“Prioritize workplace and sexual harassment training as part of the onboarding process and then ensure that the employee repeats this course on an annual basis,” she says, adding that format and depth of the course is a crucial factor as well.
“The course should be interactive, so the employee may ask questions,” MacDonald adds.
“The instructor should role play different situations so that the employee can determine what is or is not appropriate. In my view, the content needs to be understood, and the instructiveness between instructor and student is key to this.”
She recommends concluding with a quiz with actual marks, and a certificate and signoff of understanding, not just completion.
Making offsite conduct and layovers impossible to misinterpret
One of the most striking features of Sunwing is that the misconduct unfolded entirely offsite, at a resort and on a hotel tram. The arbitrator relied in part on the airline’s Global Violence and Harassment Prevention Policy, which explicitly defined layover hotels as part of the workplace and described unwelcome touching and sexualized jokes as harassment.
MacDonald stresses employers should not assume staff will intuit that business travel or celebratory trips are covered by workplace rules. She also adds that definitions are important, ensuring employees understand what constitutes a "workplace,” especially in sectors like aviation, sales, consulting and tech, where layovers, retreats and incentive trips are common and where power imbalances can be heightened.
“A reminder or mini-course and memo should be provided to employees before they attend trips with their colleagues,” she says.
“Particularly ensuring that they understand that despite the fact that they are away, they are still employees, and while they can have a good time, the same rules in the office apply outside the office. I like to ensure a memo is provided to confirm this in writing.”
Proving understanding: building a defensible training record
Beyond content, MacDonald says HR must be able to show its work if a harassment case ends up before an arbitrator, tribunal or court, including attesting to onboarding training, refresh training, and how regularly it was implemented.
HR should also be ready to show detailed “actual course materials” used in substantive training – definitions of workplace and sexual harassment, examples, reporting pathways and the investigation process.
This kind of written trail, she explains, helps rebut later claims that employees did not realize the rules applied outside the office: “It is important that HR be able to show that they took concrete steps to remind employees of their need to maintain the same type of professional conduct that they do in the workplace.”
For HR leaders, this means the quality of harassment training can influence where a case lands on the spectrum between coaching and termination – but it will rarely excuse egregious conduct entirely. Sunwing shows that even a relatively sparse training history will not rescue an employee where the behaviour is as serious and invasive as the arbitrator found in that case.
MacDonald would like to see employers go further in how they close harassment files, for the sake of both education and fairness; ultimately, she says, strong documentation is the throughline that ties training, policy, investigations and discipline together.
“These things matter, as anytime an employee can say, ‘But I did not understand,’ the employer has to be able to prove that they did, and must be able to do it in writing,” MacDonald says.
“Oral evidence is insufficient, as the court is always assessing credibility.”
