Termination for Sexual Touching: A Case Study

What actions can an employer justifiably take against an employee who has committed sexual misconduct in the workplace?

This issue was considered by the Alberta Court of appeal in Calgary (City) v Canadian Union of Public Employees Local 37.

What happened in the case?

The City of Calgary terminated an employee who had grabbed and squeezed the breast of the complainant without her consent. The employee’s union grieved the termination, but the arbitrator accepted the complainant’s evidence and found that the employee’s behaviour violated the employer’s workplace policy. The policy set out the potential consequences of breaching the policy, which included progressive discipline and termination. Taking into account the employee’s work record, length of employment, the economic environment, and the employee’s language skills and training, the arbitrator found that immediate termination was an excessive response, and substituted a nine-month suspension.

The employer applied for judicial review of the arbitrator’s decision. When the trial judge upheld the arbitrator’s decision, the employer appealed to the Court of Appeal.

What did the Alberta Court of Appeal find?

The Court of Appeal overturned the arbitrator’s decision. The majority found that “sexual assault is serious misconduct and there was a breakdown in trust arising from the [employee’s] dishonesty and real concerns about the ability of the City to provide a safe and respectful workplace”. The arbitrator had mistakenly focused on factors that were not relevant to the analysis of sexual assault in the context of current and evolving social attitudes about workplace environments.

The arbitrator had considered the absence of distress on the part of the complainant to be a mitigating factor. The Court disagreed. Rather, the employee’s behaviour was sexual assault, which constitutes serious misconduct. For the arbitrator to say that it was “lower end” sexual harassment was an error.

There was one dissenting judge who would have deferred to the arbitrator who heard the witnesses and took into account all the evidence before her. Because the employee had in fact returned to work more than three years earlier, the dissenting judge presumed that this meant there had been no concerns during that time. The majority of the Court found this presumption inappropriate.

Takeaways

This is an interesting labour case because of the Court’s findings on the categorization of sexual harassment or sexual assault and the relationship to disciplinary proceedings. Although the facts in this case arose in a union context, the majority findings are applicable to all work environments.

The Alberta Court of Appeal is signaling a shift in how workplace harassment and assault should be considered and disciplined. Interestingly, the Court found that older case law is not helpful in making these determinations because the current social view of these issues has shifted. While decision-makers can consider the negative impact of an assault on a victim as favouring stricter penalties, the lack of evidence of a traumatic impact cannot be a reason to allow more lenient discipline. The current jurisprudence on the trauma of sexual assault and harassment in the criminal context can be used to inform decisions in the employment context.

This case emphasizes how important it is for employers to maintain a safe work environment for their workers. One incident of sexual harassment or assault is sufficient to find a fundamental breach of trust.

If you have an employment law question, reach out to a member of our Labour & Employment Team