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06 November 2019
Attitudes towards sexual harassment have changed in recent years. The case law about workplace sexual harassment is slowly following suit. Where once an arbitrator might, in certain circumstances, have reinstated an employee terminated for sexual harassment and even non-consensual touching, they now take a different view.
A recent arbitration decision confirms that termination can be the appropriate penalty for long-service employees with clean disciplinary records when they engage in sexual harassment.(1)
The grievor was a driver, operator and labourer with 30 years' service and a clean record. Employees in that position commonly exchanged text messages with their supervisor and district supervisor. The grievor and AB, a female district supervisor, exchanged text messages about work-related matters; however, in February 2017 the grievor began to intersperse romantic comments and sexual innuendos in his messages. He frequently called AB by pet names such as "dear", referred to her as "good-looking" and told her that he missed her, among other things. The grievor also sent AB two "humorous" photos of penises from the Internet.
AB did not complain about the text messages initially. She either ignored the comments, brushed them off and then returned to talking about work-related issues or engaged in brief sexual banter as a response to a joke.
In April 2018 the grievor was showing AB photos of damage to his truck. When swiping through the photos, he showed AB a photo of his erect penis. He laughed, said "oops" and that he should not have shown her that picture. AB was offended and shocked. On two occasions, the grievor offered to send AB the photo of his penis. She did not respond.
AB reported the grievor to management. The grievor was suspended and told not to contact other employees about the allegations. Despite this, the grievor contacted his supervisor via Facebook to discuss his suspension and warned him about AB, saying "Don't fkn (sic) trust her".
During an investigation meeting, the grievor claimed that he had mistakenly shown AB the picture. He admitted that he felt no remorse and that he had not thought about the impact that his conduct had had on AB. At the investigation's conclusion, the employer determined that the grievor had engaged in culpable misconduct and the grievor's employment was terminated.
The arbitrator found that the grievor had intended to show AB a picture of his penis and that this misconduct was extremely serious. The arbitrator said that while all sexual harassment is serious, there is a spectrum of misconduct. The flirtatious comments made to AB were unwelcomed and annoying but not serious sexual harassment. Further, while sending photos of a penis from the Internet was grossly inappropriate, the most serious was intentionally showing AB a photo of his erect penis and then pressuring her to accept a copy of it.
In considering whether discharge was excessive, the arbitrator reviewed the following factors :
The arbitrator noted that the grievor's conduct was aggravated by the fact that he had attempted to undermine AB during the investigation by telling his supervisor not to trust her.
The arbitrator said that the grievor's misconduct had destroyed the trust necessary in the employment relationship. He upheld the termination.
This is a strong decision for unionised employers and demonstrates that sexual harassment may be sufficient to uphold a termination even where an employee has lengthy service and a clean disciplinary record. This case also highlights how seriously arbitrators look at sexual harassment in the workplace, particularly in the #MeToo era. The decision also reminds employers of the importance of taking detailed notes during an investigation, including with respect to an individual's demeanour, as the grievor's lack of remorse and his failure to accept responsibility for his actions during the investigation weighed heavily against his reinstatement.
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