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LABOUR RELATIONS - Discipline - Dismissal or discharge - Gross misconduct

Friday, November 22, 2019 @ 6:25 AM  

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Appeal by the City from a decision upholding an arbitration award that overturned the City’s decision to terminate the grievor for sexual assault, and instead substituted a lengthy suspension. The City terminated the grievor after investigating a complaint that the grievor grabbed and squeezed the complainant’s breast without her consent. The City departed from implementing progressive discipline because the grievor failed to acknowledge any inappropriate behaviour or apologize for his conduct. It concluded that it was not safe to return the grievor to the workplace because it could not trust him to be honest about his conduct.

The union grieved the termination on behalf of the grievor. The arbitrator found that the City established that the grievor committed the misconduct alleged. She also found that the conduct justified a disciplinary response as it violated the City’s Respectful Workplace Policy. The arbitrator concluded that the misconduct here 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 no evidence of any persistent conduct that would be properly considered as creating a hostile or unsafe environment. The arbitrator found that the mitigating factors and the nature and circumstances of the misconduct justified a lesser disciplinary response. The reviewing judge was satisfied that in light of the evidentiary record, case law, and arbitral jurisprudence before her, the arbitrator had reviewed the relevant factors and arguments raised and her conclusions about the categorization of the misconduct, proportionality of the discipline and substituted penalty were reasonable.

HELD: Appeal allowed. The arbitrator’s decision was unreasonable. She characterized what occurred as lower end sexual harassment, downplaying the seriousness of the misconduct. The grabbing and squeezing of another’s breast without consent was sexual assault. Sexual assault, by its very definition, was serious misconduct. It was unreasonable for the arbitrator to use ambiguous and vague language to analyze the misconduct. In conducting her seriousness assessment, the arbitrator misapplied the arbitral awards regarding categorization, and after categorizing the misconduct, drew an unsupported conclusion about the seriousness. The arbitrator did not appropriately consider the employer’s position regarding safety in the workplace and the grievor’s dishonesty. Instead, the arbitrator focused on the circumstances of the grievor and irrelevant considerations, noting that the complainant did not appear to be traumatized in any significant way. This was not a proper analysis of the factors before her. The arbitrator focused on the interests of the complainant and the grievor without adequately considering the interests of all employees. The fact that there was no pattern of misconduct or that this was an isolated incident did not lead to the conclusion that future co-workers could be confident or assured of a workplace free of such incidents in the future.

Calgary (City) v. Canadian Union of Public Employees Local 37, [2019] A.J. No. 1369, Alberta Court of Appeal, B.L. Veldhuis, D. Pentelechuk and K.P. Feehan JJ.A., October 16, 2019. Digest No. TLD-November182019011