Case In Point
Is it Appropriate to Reinstate an Employee Whose Employment Was Terminated as a Result of Sexual Harassment?
Date: June 4, 2013
In Professional Institute of the Public Service of Canada v. CEP, Loc. 3011, the Ontario Divisional Court concluded it was not.
The grievor, a mail room clerk with six years seniority, tried to kiss a female cleaner. When she pushed him away, he grabbed her buttocks. The female worker reported the incident and stated that this was not the first time it had happened. The employer terminated the grievor’s employment.
The arbitrator found that the grievor had committed acts of sexual harassment against the cleaner and against another employee, and that the act of grabbing the female employee’s buttocks constituted a sexual assault. Nonetheless, the arbitrator found that the appropriate penalty was a suspension and reinstated the grievor to his employment.
The employer sought judicial review of the arbitrator’s decision. It argued that the arbitrator relied on inappropriate factors in deciding to reinstate the grievor, that the gravity of the harassment supported discharge, and that reinstating the grievor could put it in breach of its obligations to provide a workplace free from violence and harassment for its other employees.
The Divisional Court stated that all of the employer’s submissions had merit and overturned the arbitrator’s decision.
For the Court, Justice Sachs noted that the arbitrator chose to reinstate on two pieces of evidence. The first was that another co-worker had managed to get the grievor to stop harassing her by “showing him her fist.” The second was that the complainant did not want the grievor to lose his job.
In a strongly worded judgment, Justice Sachs stated that both these considerations were “irrelevant and represent a dangerous step backwards in the law surrounding the treatment of sexual misconduct in the workplace. It is not the responsibility of employees to protect themselves from being sexually harassed or assaulted by being strong or threatening violence.” While not every case of sexual harassment will demand a discharge, in this case, the grievor showed no remorse for his behaviour and had harassed more than one co-worker. As a result, if the grievor was reinstated, there was insufficient evidence that he would not continue to pose a threat to female employees.
The Divisional Court’s decision emphasizes that employees are entitled to a workplace that is free from sexual harassment and employers have a responsibility to ensure that their employees are not exposed to this type of behaviour. In some cases, this will mean that discharge is the only appropriate penalty for sexual misconduct in the workplace.