An Alberta labour arbitrator found an employer was justified in firing a unionized employee for just cause for his off-duty sexual assault of a co-worker.
In Corporation of the City of Calgary v Amalgamated Transit Union, Local 583, 2023 CanLII 20867 ("Calgary v ATU"), Arbitrator James T. Casey, K.C. (the "Arbitrator") concluded that the City of Calgary (the "City") was justified in summarily dismissing an employee who had sexually assaulted a co-worker outside of working hours.
The Grievor had worked for the City as a transit bus operator for almost 17 years, with no prior discipline. His female co-worker (the "Co-Worker") also held the same position in the City's transit system. They saw each other infrequently at work, were not friends, and did not socialize outside of work.
On the night of the incident, after work, the Grievor took his Co-Worker on a test drive in his vehicle. She was interested in purchasing a car, and the Grievor told her that he was looking to sell his vehicle. The Grievor proceeded to hold his Co-Worker's hand during the drive, asked her to be "friends with benefits", asked her to "fool around", made multiple sexual advances at her (which she repeatedly rejected), and touched her breast without her consent. In a follow-up telephone call, when the Co-Worker had inquired if the car was still available and after the Grievor told her it had been sold to someone else, the Co-Worker told the Grievor that he had made her feel uncomfortable during the test drive.
While there were some factual disputes over what occurred during and after the test drive, the Arbitrator preferred the Co-Worker's version of events, noting that the Grievor lacked credibility where there were conflicts in the evidence.
Discipline for Off-Duty Conduct
The Union argued that if the Arbitrator only were to find that the Grievor made improper comments, then no disciplinary response by the Employer would have been justified, given the "off-duty" context (i.e., the fact that the comments occurred outside of the workplace). However, the Union acknowledged discipline of some kind would be appropriate if the Arbitrator concluded that a sexual assault had occurred.
The Arbitrator summarized the law on off-duty conduct giving rise to discipline, noting that, generally, employers have no jurisdiction over what employees do outside of working hours, unless it can be shown to affect the employer's legitimate business interests. Accordingly, to discipline an employee for off-duty misconduct, the employer must demonstrate such behaviour:
- harms the employer's reputation or product;
- renders the employee unable to properly perform his duties satisfactorily;
- leads to other employees refusing to or being reluctant to work with that person;
- results in an employee being found guilty of a Criminal Code offence, thus rendering their conduct injurious to the general reputation of the employer; or
- creates difficulty in the employer's ability to efficiently manage and direct its workforce.
Employers need not establish all the above criteria. Rather, any single criteria may justify discipline, depending on the degree of impact on the employer. With respect to impact on reputation, the employer does not need to lead evidence of the effect on its reputation; rather, the question is what a fair-minded and well-informed member of the public may think about the off-duty conduct.
It should be noted that the City had an internal policy justifying discipline or discharge for behaviour mirroring the above-listed legal criteria.
The Arbitrator determined that the Grievor's repeated advances constituted sexual harassment, and touching the Co-Worker's breast without her consent was sexual assault.
The Arbitrator identified that the only reason the Grievor and Co-Worker knew each other, and thus the only reason the test drive took place, was that they both worked for the City. Further, the Arbitrator noted that transit operators are expected to be ambassadors for the City, working closely with the public, such that they operate in a position of trust, dealing with vulnerable populations. Given this context, the Arbitrator found that the Grievor's off-duty sexual harassment and assault on his Co-Worker harmed the City's reputation. The misconduct created problems for the Grievor's ability to perform his role as a transit operator, which was a position of trust. The misconduct would likely make other co-workers, especially female co-workers, reluctant to work with him. Finally, the misconduct created operational challenges for the City because it would be difficult for the City to ensure the Grievor and Co-Worker would not interact again in the workplace.
Weighing the severity of the misconduct, the Grievor's failure to accept responsibility, and the City's responsibility to maintain a safe working environment against the Grievor's long service and discipline-free record, the Arbitrator upheld the City's decision to terminate the Grievor's employment for cause as an appropriate response.
Takeaways for Employers
Calgary v ATU is an example of an employee's egregious off-duty misconduct justifying their dismissal for cause. While employers generally cannot regulate their employees' lives outside of work, this decision is a reminder that employers may still be affected, reputationally and operationally, by employee behaviour that occurs outside the workplace. Employees, particularly those in positions of trust, should be cognizant that actions in their personal lives may affect their job security if such actions impact their employer's legitimate business interests. Employees should remain respectful towards their colleagues in all interactions, whether on or off duty.
The author would like to acknowledge the support and assistance of Cameron Penn, articling student at law.
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.