Rhonda Levy; Sari Springer; Littler; Littler Mendelson; Littler LLP

Alberta Court of Appeal reminds adjudicators to take a modern approach to sexual misconduct in the workplace

By Rhonda Levy, Sari Springer

Two years after the #MeToo Movement made the prevalence of sexual harassment and sexual assault in the workplace known worldwide, the Alberta Court of Appeal in Calgary (City) v. Canadian Union of Public Employees Local 37, 2019 ABCA 388 offered some important commentary. This case involved the City of Calgary’s appeal of a judicial review decision pertaining to a sexual assault in a workplace. Although its decision was made in a unionized context, the Court of Appeal’s guidelines are worthy of being considered whenever a sexual assault complaint is made in a workplace.

Background

An employee complained that a coworker (the grievor) groped her breast without her consent. The City determined the misconduct was substantiated and found it constituted a serious breach of the City’s Respectful Workplace Policy. In its letter terminating the grievor, the City noted he initially denied physical contact with the complainant, but after discussions with the union representative, admitted touching her innocently.

The union grieved the termination on behalf of the grievor. When the matter was not resolved via the dispute resolution process it proceeded to arbitration before a sole arbitrator.

The Arbitrator’s Decision

The arbitrator found the grievor committed the misconduct, but concluded termination would be an excessive disciplinary response due to mitigating factors and the nature and circumstances of the misconduct. The arbitrator considered the following factors to be mitigating:

  • The grievor’s long service record;
  • The grievor’s clean disciplinary record;
  • The economic hardship termination would impose on the grievor and his family, given the state of the economy at the time, and the grievor’s level of education, lack of training, and language barriers.

In addition, the arbitrator found the nature and circumstances of the grievor’s misconduct was at the lower end of the sexual harassment spectrum because:

  • It was a single incident;
  • The complainant did not appear to be traumatized in any significant way;
  • There was no evidence that this was anything but an impulsive, ill-thought-out, isolated incident; and
  • There was no evidence of any persistent conduct that would be properly considered as creating a hostile or unsafe environment.

The arbitrator directed the City to reinstate the grievor without a loss of seniority following a nine-month suspension without pay, and directed the grievor to attend an orientation process including the City’s Respectful Workplace Policy.

Decision of the Court of Queen’s Bench of Alberta

The City applied for judicial review of the arbitrator’s decision. In Calgary (City) v Canadian Union of Public Employees, Local 37, 2017 ABQB 662, the reviewing judge dismissed the application for judicial review, stating that the arbitrator’s decision-making process was justified, transparent and intelligible, and the outcome fell within the range of possible, acceptable outcomes based on the facts and law.

Decision of the Court of Appeal of Alberta

For the following reasons, the Court of Appeal vehemently disagreed with the arbitrator’s decision and the reviewing judge’s finding on judicial review:

  • The arbitrator downplayed the seriousness of the misconduct when she characterized it as “lower end sexual harassment.”
  • Grabbing and squeezing another person’s breast without consent is sexual assault, which is sexual misconduct/harassment in its most serious form. The arbitrator failed to conduct her analysis with this finding in mind.
  • The factors the arbitrator focused on were “…not current with present day analysis of sexual assault and are inconsistent with the social context and the evolving attitudes of what is acceptable in the workplace.” For example, she commented that the complainant did not appear to have been traumatized in any significant way by the contact; the court noted that it is impermissible to consider this a mitigating factor.
  • The arbitrator relied on arbitral precedents that are incongruent with modern society’s view of acceptable conduct in the workplace.
  • The arbitrator focused on the interests of the complainant and grievor. She failed to weigh the grievor’s dishonesty and the City’s onerous legal obligation to protect its employees and maintain safe and respectful workplaces. The Court noted the 2017 overhaul of Alberta’s health and safety legislation and the introduction of provisions directed at sexual harassment and violence in the workplace, which, in its view, spoke to “… the changing culture and social expectations in the workplace.”

The Court of Appeal concluded that the factors weighed heavily against reinstatement, allowed the appeal, and remitted the matter for re-hearing before a different arbitrator.

Bottom Line for Employers

It is interesting to consider where each of the three decisions in this case falls in the #MeToo timeline:

  • The arbitrator’s decision was delivered on August 19, 2016, over a year before the #MeToo movement began. At this point, society was not yet fully aware of the extent of workplace sexual misconduct.
  • The decision of the Court of Queen’s Bench of Alberta was delivered on November 1, 2017, just weeks after the #MeToo movement gained momentum.
  • The decision of the Court of Appeal of Alberta was delivered on October 16, 2019, exactly two years after the birth of the #MeToo movement. By this time, many women had come forward with stories of sexual assault in the workplace and attitudes were forever transformed. In this modern context, it became less acceptable to downplay a sexual assault complaint.

The Alberta Court of Appeal sent a clear message to adjudicators faced with deciding how an employer should respond to a workplace sexual assault: do not downplay the seriousness of sexual assault and analyze it with the understanding that it is sexual harassment in its most serious form. In conducting the analysis, avoid focusing on factors that at the relevant time would be considered irrelevant based on evolving attitudes. Avoid relying on legal precedents that are out-of-step with modern views of acceptable behavior in the workplace. And finally, recognize the employer’s duty to maintain a safe and respectful workplace is owed not only to the complainant but to all employees.

Although the Alberta Court of Appeal directed these guidelines to adjudicators faced with the task of determining how an employer should respond to a workplace sexual assault, we encourage employers to also consider the court’s guidelines when conducting such an analysis.

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