Sexual harassment in the workplace continues to cause employers several legal and financial challenges. In a recent decision, Justice Sachs of the Divisional Court assuaged a few of these problems by taking a zero tolerance approach to a grievance arising from a case of sexual harassment and assault.
It had been alleged that, on June 14th, 2012 a mail room clerk sexually harassed a cleaner employed by a cleaning contractor. The complainant reported the incident to the clerk’s employer, the Professional Institute of the Public Service of Canada (PIPSC), stating that such behaviour had been going on for a long time without her consent. The accused clerk did not deny the allegation, but protested that the complainant had consented to his advances.
After a brief period of investigation, during which time the clerk was placed on administrative leave, his employment was terminated. The Communications, Energy and Paperworkers’ Union of Canada, Local 3011 (CEP) grieved the termination on his behalf.
At arbitration, it was established that the clerk had sexually harassed and assaulted the complainant on an ongoing basis.
In determining the appropriate penalty, the Arbitrator considered the clerk’s blameless employment record, six years of service, and conduct during the investigation. The Arbitrator also considered the testimony of another cleaner who was the victim of the same harassment until she successfully demanded that the behaviour come to an end. The Arbitrator then considered the testimony of the complainant, who stated that she did not necessarily want to see the grievor’s employment terminated; she simply wanted an end to the harassment. Ultimately, a lengthy suspension was substituted for the termination.
PIPSC filed for judicial review, requesting that the Arbitrator’s award be overturned and the termination reinstated.
The Court confirmed that the ongoing nature of the misconduct was egregious, and that while there was no formal discipline on the clerk’s record, this was likely because, as witnesses had established, his misconduct had not been previously reported to the employer. The grievor was unremorseful and refused to take responsibility for his actions, there was also no evidence that, if reinstated, he would not continue to abuse other employees in the same manner.
Most importantly, the Court found the Arbitrator’s decision to be unreasonable in relying on the complainant not wanting the grievor to be dismissed, and another employee successfully forcing the clerk to stop harassing her as factors favouring reinstatement. The Court confirmed that a complainant is not in a position to decide the appropriate penalty; rather, the onus to establish a harassment-free workplace is to be borne by employers, not employees.
This decision represents an endorsement of the move towards a zero tolerance approach to workplace violence. At the time of print, this matter had not been appealed to a higher court. Accordingly, this decision is a helpful precedent in support of an employer’s efforts to establish and maintain a workplace that is free of sexual harassment and sexual assault, as required by law.