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, now arbitrators take a different view. A recent arbitration decision, Calgary (City) v CUPE, Local 37 (Mossman Grievance), confirms that termination can be the appropriate penalty for a long service employee with a clean disciplinary record when they engage in sexual harassment.
The grievor was a driver/operator/labourer with 30 years of service and a clean record. Employees in that position commonly texted their foreman and district foreman. The grievor and AB, a female district foreman, exchanged texts about work-related matters; however, in February 2017, the grievor began to intersperse romantic comments and sexual innuendos in his texts. 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 texts initially. AB 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 one. AB was very offended and shocked. The grievor offered, on two occasions, 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 foreman 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 shown AB the picture by mistake. He admitted that he did not feel remorseful and that he had not thought about the impact his conduct had on AB. At the conclusion of the investigation, the employer concluded that the grievor had engaged in culpable misconduct and the grievor's employment was terminated.
The arbitrator found that the grievor intended to show AB a picture of his penis. The arbitrator found 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 unwelcome and annoying, but not serious sexual harassment. Sending photos of a penis from the internet was grossly inappropriate, but 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 considered the following factors:
- The grievor engaged in a pattern of escalating misconduct;
- The grievor had not accepted any responsibility for his actions; and
- The grievor did not show remorse.
The arbitrator noted that the grievor's conduct was aggravated by the fact that he attempted to undermine AB during the investigation by telling his foreman 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 unionized 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 "me too" era. The decision also reminds employers of the importance of taking detailed notes during an investigation, including with respect to an individual's demeanor, 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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