Canada: Employers - Be Cautious When Dismissing Employees Where Ulterior Motives Involving Union Politics May Taint A Harassment Complaint

Last Updated: September 28 2017
Article by Shreya Patel

In a recent decision, Arbitrator Slotnick commended the employer for taking a hard line against sexual harassment but also criticized the employer for failing to consider union politics and exaggerated allegations motivating the complaint.

In Canadian Union of Public Employees, Local 2723 v. City of Burlington the female grievor was discharged for alleged sexual harassment of a male co-worker. The grievor was a transit operator, driving a bus for the employer for about four years. At the time of her dismissal, she was 50 years old and had no discipline on her record.

The allegations of sexual harassment related to three incidents in late 2015 or early 2016. The complainant, a transit operator, was also the vice-president of the union local. The complaint was not made to the employer until late February 2016, possibly several months after the alleged sexual harassment incidents.

After receiving the complaint, the employer launched an investigation, pursuant to its Respect in the Workplace policy. The investigation concluded that the grievor's behaviour constituted sexual harassment and recommended some form of progressive discipline.

In early February 2016, two male transit workers were fired based on three sexual harassment complaints. Two of these complaints were filed by the grievor. One of the men fired was the union president. During the investigation, the grievor informed the investigator that the complainant was close to the two men who had been fired and that she thought he was trying to get back at her.

Based on the evidence tendered at the arbitration, Arbitrator Slotnick found that the complainant embellished his complaint by exaggerating the sexual content of the grievor's actions and exaggerated the impact on him. In ruling that the sexual harassment allegations had not been proven, Arbitrator Slotnick allowed the grievance and ordered the grievor reinstated with a two-day suspension on her record.

Arbitrator Slotnick noted that an "employer must take care to assess whether the complainant is bringing the complaint for improper reasons". He further criticized the employer in this case for overlooking the internal politics of the transit department. Arbitrator Slotnick focused on the timing of the complaint. It was raised after the two men were fired for sexual harassment in which the grievor was the complainant. The employer should have considered that this was likely the motivating factor behind the complaint and a quest for retaliation against the grievor. Noting the investigator's notes with comments alluding to union politics involved, the arbitrator stated that this should have alerted the employer that the complainant may have been motivated to embellish the grievor as a dissolute woman prowling around the workplace.

This decision reminds employers that they must guard against complaints that are made for improper motives and allegations may be embellished. The professionals at CCPartners have extensive experience with advising employers on implementing appropriate discipline in the workplace and conducting third party workplace investigations. Click here for a list of our team members that can assist with all your labour relations questions and here for our team members who conduct workplace investigations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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