An Ontario court has overturned an arbitrator’s finding that a government employee’s years of sexual harassing other workers didn’t warrant the employee’s firing.
A mail room clerk for the Professional Institute of the Public Service of Canada (PIPSC), a union representing scientists and professionals employed with various levels of government, worked all over the PIPSC’s headquarters in Ottawa. He often engaged in sexual banter with the cleaning staff — who worked for a contractor — including two particular female cleaners. Whenever he encountered either of them alone, he would blow her a kiss and sometimes grab her buttocks. This behaviour went on for about five years despite the cleaners asking him to stop. Eventually, one of the cleaners shook a fist at him and warned him to stop, at which point he did. However, he continued to bother the other cleaner.
In June 2012, that cleaner reported an incident where the clerk cornered her in an elevator, tried to kiss her and grabbed her. The clerk claimed the cleaner consented to the behaviour and had done so for a while. The cleaner denied she had consented to it but said she didn’t want him to be fired. However, PIPSC determined the clerk was lying about the cleaner’s consent and terminated his employment on June 20, 2012.
The arbitrator found the clerk’s misconduct was serious and he tried to downplay its effect by saying the cleaner was a willing participant. However, the arbitrator noted the cleaner didn’t want him fired. and the clerk had stopped harassing the other cleaner when she “showed him her fist and made it clear he had gone too far.” It was reasonable to assume he would stop his behaviour towards the other cleaner now that he knew how serious it was considered, and save the employment relationship, said the arbitrator. PIPSC was ordered to reinstate the clerk with a five-month unpaid suspension.
PIPSC appealed to the Ontario Divisional Court, which took a different view of the likelihood of continuing success of the employment relationship.
The court emphasized the clerk had difficulty understanding that “no means no” when the female cleaners resisted his advances. And since his harassing behaviour continued for five years, it was questionable he would completely stop if reinstated.
The court also found the clerk showed no remorse or appreciation of the gravity of his misconduct, as he tried to downplay it and either didn’t understand it was unwanted or chose to ignore it.
In addition, the court strongly disagreed with the arbitrator’s reasoning that because he stopped harassing one cleaner after being threatened, he would understand he had to stop harassing the other after being suspended, as well as the fact the cleaner said she didn’t want the clerk fired.
“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. 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,” said the court.
The appeal was allowed and the arbitrator’s decision was set aside. The court ordered the clerk’s dismissal to be upheld.
For more information see:
• Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011,
2013 CarswellOnt 6341
(Ont. Div. Ct.).
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