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Sexual Assault is NOT “Lower End” Harassment, and the Labour Arbitrator Who Said Otherwise Was Wrong.

I for one would have thought it would be pretty obvious, but it actually took the matter going all the way to the Alberta Court of Appeal to quash an arbitrator’s award reinstating a City of Calgary employee who was terminated for groping a co-worker.  No seriously, it took two levels of review before the Alberta Court of Appeal decided:

… the arbitrator ought to have found that the grabbing and squeezing of a breast without consent was a sexual assault, which is serious misconduct and not “lower end” sexual harassment.

For the full decision in Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388, click here. <http://canlii.ca/t/j2vgc>

You read that right.  In the grievance arbitration in issue, a City of Calgary gardener was approached by her co-worker, who told her that he needed a new pair of gloves.  They walked to the storage shed, where he then put his hands on her shoulders, before proceeding to squeeze her breast.  In a state of shock, the employee unlocked the shed, gave her co-worker the gloves, and then later lodged a complaint.

Upon investigation, the Grievor denied touching his co-worker.  Later, he acknowledge innocently touching her shoulder, but denied that he touched her breast.  He also said that during the discipline process (not before, mind you) he learned that unwanted touching was not permissible and said he would not do it again.  The City determined that the allegation was substantiated, and accordingly terminated the Grievor for just cause.

The Union grieved the termination, and on August 19, 2016, Arbitrator Phyllis Smith allowed the grievance.  There is a three factor analysis that a labour arbitrator must undertake when a union grieves discipline given to an employee:

1. Has the employee given reasonable and just cause for some form of discipline by the employer?
2. If so, was the employer’s disciplinary response excessive in all the circumstances of the case?
3. If the disciplinary response was excessive, what alternative, lesser measure should be substituted at just and equitable?

Labour arbitrators have wide discretion to impugn an employer’s decision to impose discipline, and can substitute what they believe is the appropriate level of discipline in the circumstances.  In this case, the Arbitrator held that termination from employment was excessive in the circumstances.  She determined the just and equitable thing to do would be to allow the grievance, overturn the termination, and substitute a nine-month unpaid suspension.  The basis of her decision included that the misconduct here was at the lower end of the sexual harassment spectrum because it was a single incident; the complainant did not appear to be traumatized in any significant way; there was no evidence that this was anything but an impulsive, ill-thought out, isolated incident; and there was no evidence of any persistent conduct that would be properly considered as creating a hostile or unsafe environment.

The City predictably sought judicial review of the Arbitrator’s decision by the Alberta Court of Queen’s Bench.  First-level courts tend to give deference to administrative adjudicators, especially including labour arbitrators.  On review, the Court of Queen’s Bench deferred to the Arbitrator’s decision as meeting the “reasonable” standard.  Startlingly, it said in part that the Arbitrator was “live to changing attitudes about sexual harassment, its effect on employees and the over-arching duty of employers to protect employees from unwanted sexual advances.”  The reasonable reader will undoubtedly ask: How could a legal decision-maker possibly be “live to changing attitudes about sexual harassment” if they think that non-consensual groping is “low-level sexual harassment” and not clearly sexual assault?

The answer from the Alberta Court of Appeal is: they can’t.

The majority of a three-judge panel on the Court of Appeal overturned the lower court, and quashed the Arbitrator’s decision, remitting the grievance to be argued over in front of a different arbitrator.  The majority of the Court acknowledged that “harassment with a physical component constitutes a form of sexual assault and is among the most serious form[s] of workplace misconduct.”  There were consequences to the Arbitrator’s decision to euphemize (and therefore minimize) the assault as: personal assault, incident, contact, or conduct.

Further, the Court of Appeal rejected the Arbitrator’s reliance on out-dated and flatly wrong assumptions about victims of sexual assault.  It ruled that it was not reasonable for the Arbitrator to have relied on a finding that the complainant was not “significantly impacted” as a factor supporting the grievance.  Twenty years ago the Supreme Court of Canada warned against relying “on what is presumed to the expected conduct of a victim of sexual assault.”  It is not permissible to rely on a perceived lack of distress from the victim as a mitigating factor in a case like this.

The Court of Appeal additionally criticized the Arbitrator for deciding that the Grievor did not pose a risk to the complainant, without considering whether he would pose a risk to all other employees.

There are several things that all of us at CCPartners would like employers to take from this decision:

1. Employers have an over-arching duty to take diligent steps to maintain a safe work environment;

    

2. Complaints of misconduct in the workplace often require investigation, and any investigation should be conducted carefully by an impartial and competent investigator;

    

3. A finding of workplace harassment or violence should be met with a disciplinary response consistent with the severity of the misconduct, taking all relevant factors into consideration;

    

4. Non-consensual sexual touching is among the most serious forms of workplace misconduct.While the disciplinary response in each case is determined on its own merits, employers need to be careful not to rely on antiquated notions or expectations of how a victim “should” act.

It is sometimes not easy to determine whether certain conduct occurred in the workplace, and if so, how to manage it.  Employers should seek appropriate support either to investigate an incident, or assess the proper response.  CCPartners has a team of experienced investigators and lawyers to help you determine your next steps, and if need be, to seek that an unreasonable labour arbitration decision be overturned on judicial review, or appeal.