In 2019, workplace harassment and sexual harassment received considerably more attention than ever before. Public awareness about workplace harassment has been on the rise due to prominent social movements (#MeToo, #Timesup) and high-profile harassment cases.
Employers are increasingly becoming aware that failing to adequately address harassment in the workplace can be very costly and can result in potential liabilities including constructive dismissal claims, violations of human rights legislation and (depending on the jurisdiction) violations of health and safety legislation. Similarly, Canadian society’s evolving perspective on sexual harassment in the workplace, including the growing consensus that it is serious and unacceptable misconduct deserving of severe consequences, is increasingly being considered by Canadian courts, as demonstrated by a recent decision of the Alberta Court of Appeal (the “ABCA” or the “Court”).
In Calgary (City) v Canadian Union of Public Employees, Local 37 [Calgary], the ABCA allowed an appeal and overturned a lower court’s judicial review decision in respect of an arbitration award. The ABCA found that the arbitrator failed to take a modern view of the seriousness of sexual misconduct in the workplace and thereby reached an unreasonable decision regarding the discipline that was appropriate for an employee who had sexually assaulted a co-worker.
Background and the Arbitrator’s Decision
In Calgary, the union grieved the City of Calgary’s (the “City”) decision to dismiss one of its employees for sexually assaulting another employee, based on the fact that unionized employees can only be dismissed for “just cause”. The grievor, who was alleged to have grabbed and squeezed the complainant’s breast without her consent, initially denied the allegation, but later admitted to “touching of an innocent nature”.
At the grievance arbitration, the arbitrator found that the grievor had in fact grabbed and squeezed the complainant’s breast without her consent, but ultimately ordered that he be reinstated after a nine-month suspension without pay.
The arbitrator reached this decision based on her application of the well-established William Scott test for assessing termination grievances, which asks:
- Has the employee given reasonable and just cause for some form of discipline by the employer?
- If so, was the employer’s decision to dismiss the employee an excessive response in all the circumstances of the case?
- If the arbitrator does consider discharge excessive, what alternative measures should be substituted as just and equitable?
The arbitrator found that the first element of the test was met, but that the grievor’s dismissal was an excessive response in all the circumstances. The arbitrator reached this finding based on her conclusion that the grievor’s misconduct, “was at the lower end of the sexual harassment spectrum because it was a single incident; the complainant did not appear traumatized in any significant way”; it was an isolated incident; and “there was no evidence of any persistent conduct that would be properly considered as creating a hostile or unsafe work environment.”
Additionally, the arbitrator considered there to be several mitigating factors, such as the grievor’s many years of service and clean disciplinary record, as well as the economic hardship that the grievor’s family would experience as a result of his dismissal.
The City applied for judicial review of the arbitrator’s finding that the grievor’s dismissal was excessive in the circumstances, as well as her order to reinstate the grievor after a 9-month unpaid suspension.
The Reviewing Judge’s Decision
The reviewing judge refused to interfere with the arbitrator’s decision because she found that the arbitrator’s “decision-making process was justified, transparent, and intelligible, and that the outcome fell within the range of possible acceptable outcomes based on the facts and law”.
The City appealed this decision to the ABCA.
The ABCA’s Decision
On appeal, the ABCA found that the arbitrator’s decision under the second element of the William Scott test was unreasonable. The ABCA determined that the arbitrator failed to appropriately analyze the relevant factors, and overturned the decision to reinstate the grievor to employment.
In particular, the ABCA held that the arbitrator failed to appreciate the seriousness of the misconduct. The arbitrator erred in characterizing the grievor’s conduct as “lower end sexual harassment”, because grabbing and squeezing a colleague’s breast without her consent is sexual assault and sexual assault is sexual harassment “in its most serious form”.
Similarly, the ABCA held that the arbitrator’s reliance on antiquated categorizations of workplace sexual harassment “led her astray and caused her to focus on factors that… are inconsistent with the social context and evolving attitudes of what is acceptable in the workplace”. For example, the Court noted that, while trauma or distress is an aggravating factor when assessing appropriate discipline, the complainant’s lack of trauma or distress cannot be considered a mitigating factor.
Moreover, the court held that the arbitrator failed to adequately consider the right of all of the City’s employees to a safe and respectful workplace free from sexual harassment and the City’s legal obligation to take all reasonable steps to provide such a workplace, in light of the grievor’s dishonesty and refusal to acknowledge and apologize for sexually assaulting the complainant.
Consequently, the Court found that the relevant factors weighed heavily against reinstatement, quashed the arbitration award, and ordered that the matter be remitted for a re-hearing before a different arbitrator.
Calgary makes it clear that sexual assault in the workplace is sexual harassment in its most serious form and that it is an error for courts, arbitrators, and other decision makers to characterize it differently based on antiquated jurisprudence. Similarly, it is impermissible to consider the lack of trauma or distress of a sexual assault victim to be a mitigating factor, although their trauma and distress can properly be considered an aggravating factor.
The Court’s decision in Calgary illustrates that the courts are increasingly taking society’s evolving perspective on sexual misconduct in the workplace into consideration, namely that such misconduct is serious, unacceptable, and deserving of severe consequences. The ABCA’s reminder that decision makers must consider “whether time and changing social values reveal precedents to be based on faulty assumptions about acceptable sexual conduct in the workplace” should help to ensure that lower courts and arbitrators take a modern contextual approach to workplace sexual harassment that appreciates how serious such misconduct really is.
Social attitudes toward workplace harassment and workplace sexual harassment in Canada have changed drastically between the arbitral decision in this matter, delivered in August 2016, and the ABCA’s October 2019 ruling. Across Canada, today’s employees are less willing to tolerate behaviour once considered routine in a work environment, but now quickly labelled as harassment, or even assault. Between August 2016 and October 2019, several provinces have implemented workplace harassment and sexual harassment protections in health and safety legislation. Treating workplace harassment as a workplace health and safety issue acknowledges the impact this type of misconduct may have on employee health and safety. Given the overall legislative trend, the ABCA’s decision in Calgary, though not binding on courts in other provinces or federally, is likely an indicator of trends to expect in other jurisdictions when it comes to adjudicating workplace harassment issues.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.