An unremorseful mail room clerk's sexual harassment and
grabbing of a contract worker was just cause for dismissal, the
Ontario Divisional Court has held, overturning and criticizing an
A female cleaner employed by a cleaning contractor in the
building complained that the mail room clerk tried to kiss her in
an elevator, that she pushed him away, after which he grabbed her
buttocks. She reported that the employee had grabbed her
buttocks in the past, and that it had "been going on for a
long time", four to five years, and she wanted it to
stop. When confronted, the mail room clerk did not deny the
incident, but he alleged that it had been consensual.
The employer fired the mail room clerk. A unionized employee, he
challenged the firing at arbitration, but – curiously
– he did not testify at the hearing. The arbitrator
reinstated the employee, noting that after another employee had
confronted him about sexually harassing her, "it does not
appear that [the other employee] was bothered by him
On judicial review, the court noted that the mail room clerk
had, for approximately five years, engaged in behaviour that
included speaking and gesturing in a sexually suggestive way,
performing a "sexy dance", blowing kisses, and sometimes
grabbing the contract worker's buttocks. The court found
that the buttock-grabbing constituted sexual assault, and all of
the behaviour taken together constituted sexual harassment.
The court, in a reproof of the arbitrator, stated:
"The arbitrator's reasons demonstrate that he was
keenly aware of Mr. Haniff's lack of remorse and insight. Yet
he chose to reinstate Mr. Haniff on the basis of what he regarded
as two "significant" pieces of evidence. First, another
cleaner was able to get Mr. Haniff to stop sexually harassing her
when she threatened him with violence by showing him her fist and
the same cleaner also testified that the Complainant was a strong
woman who could stand up for herself. Second, the Complainant did
not want Mr. Haniff discharged.
"Both these considerations were irrelevant and represent a
dangerous step backwards in the law surrounding the treatment of
sexual misconduct in the workplace. It is not the responsibility of
employees to protect themselves from being sexually harassed or
assaulted by being strong or threatening violence. Employees are
entitled to a workplace that is free from sexual harassment and
employers have a responsibility to ensure that their employees are
not exposed to this type of behaviour. The legislature has
reinforced these obligations in Bill 168, which involved a series
of amendments to the Occupational Health and Safety Act that
deal with violence and harassment in the workplace."
Further, the court found that the mail room clerk's
"so-called 'apology'" letter to the complainant
was not really apologetic, and that he lacked remorse and
insight. There was no evidence that he had learned from his
experience, had insight into his behaviour or was likely to take
steps to ensure that it did not happen again.
In the result, the employer had just cause to dismiss the mail
room clerk. The arbitrator's decision was overturned.
This case demonstrates the courts' strong stance against
sexual harassment in the workplace, particularly in light of Bill
168, and is consistent with earlier decisions such as Bannister v. General Motors of Canada
Ltd., 1998 CanLII 7151 (ON CA).
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