THE EMPLOYERS' EDGE
Ontario’s Divisional Court Overturns Decision to Reinstate Employee who Sexually Harassed Co-Workers
An Ontario court recently overturned a labour arbitration award that reinstated an employee who sexually harassed two co-workers. The employee (“Mr. Haniff”) worked as a mail room clerk for the employer. A female cleaner (the “Complainant”) reported to the employer that Mr. Haniff entered an elevator with her and tried to kiss her. She alleged that after she pushed him away that he grabbed her buttocks. The Complainant informed the employer that this type of behaviour had been occurring for four to five years and that she wanted it to stop.
When confronted with these allegations, Mr. Haniff did not deny the incident and instead claimed he had obtained consent to behave in that manner. The Complainant denied having provided Mr. Haniff any such consent.
Mr. Haniff was terminated after the employer completed an investigation of the alleged incident. The union filed a grievance on behalf of Mr. Haniff requesting that he be reinstated. The grievance proceeded to arbitration.
At the Arbitration, Arbitrator Weatherill accepted as fact that Mr. Haniff’s actions amounted to sexual harassment and sexual assault, that the Complainant had not consented to any of Mr. Haniff’s conduct, that Mr. Haniff had committed similar acts of harassment to another cleaner despite being asked not to, and that he ought to have known that his actions were improper. Despite these findings of fact, the Arbitrator ordered Mr. Haniff’s reinstatement and substituted a suspension for his termination.
The Arbitrator made this order based seemingly on another cleaner’s ability to get Mr. Haniff to stop sexually harassing her by threatening him with violence, on the fact that the complainant was a strong woman who could stand up for herself and on a statement made by the complainant that she did not want Mr. Haniff to be terminated.
The Employer sought judicial review of the arbitration award. The Divisional Court determined that the Arbitrator’s decision did not fall within a range of possible acceptable outcomes that were defensible in light of the facts and the law and set aside the arbitration award with respect to Mr. Haniff’s reinstatement, while upholding the Employer’s decision to terminate Mr. Haniff.
The Divisional Court found that the factors considered by Arbitrator Weatherill when making the determination to reinstate Mr. Haniff were irrelevant and represented “a dangerous step backwards in the law surrounding the treatment of sexual misconduct in the workplace”. The Court held that the decision to terminate Mr. Haniff was in no way the complainant’s and her statement should have had no impact on the Arbitrator’s decision. Further, the Court held it was not the responsibility of employees to protect themselves from being sexually harassed or assaulted by being strong or threatening violence on harassers.
The court stated that it is employers who are responsible for ensuring their employees are not exposed to that type of behaviour and that the legislature has reinforced that obligation with the introduction of Bill 168 dealing with violence and harassment in the workplace. If Mr. Haniff were reinstated, the employer could not ensure a workplace free from sexual misconduct as required under Bill 168. In this regard, the court stated “without this evidence [of remorse] neither the employer nor the arbitrator could have any assurance that if Mr. Haniff were reinstated, he would not continue pose a threat to the Complainant and other employees”.
It is important to note that the court made clear that not every case of sexual harassment or assault leads to a discharge. There are instances where it is appropriate to substitute a lesser penalty, particularly where the conduct falls on the less serious end of the spectrum of this type of conduct.
The lawyers at CCPartners can assist employers with determining whether an employee’s misconduct is worthy of termination in both union and non-union settings.
Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011, 2013 ONSC 2725 (CanLII) can be found HERE.
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