Harassment complaint between employer and employee: Court

Quebec Court of Appeal strikes down previous decisions that allowed accused harasser to be part of harassment grievance
|employmentlawtoday.com|Last Updated: 04/26/2012

A harasser should not be involved in the proceedings of an employee’s harassment case against her employer, the Quebec Court of Appeal has ruled.

The harassment complaint was filed by a laboratory technician at a vocational college in Montreal, Que., against a teacher at the college. The college investigated the complaint, but determined there was no harassment. Technician’s union filed a grievance against the college.

The accused harasser also filed a motion asking to be an equal party in the arbitration, claiming his honour, dignity and reputation were on the line. The arbitrator did not grant him equal-party stauts, but allowed him to be an intervenor in the case, which allowed him to have legal representation and cross-examine the technician.

The arbitrator found the harassment did in fact happen, and the union requested the teacher be banned from the technician’s work area. Despite the fact that the teacher didn’t have full-party status in the proceedings, the arbitrator found there were exceptional circumstances that allowed direct orders to be made against the teacher.

The Quebec Superior Court of Justice reviewed the arbitrator’s decision and found the teacher should have been made a full party in the case. However, the province’s Court of Appeal disagreed with both the lower court and the arbitrator, finding that the teacher should be neither a full party nor an intervenor in the harassment case.

The Court of Appeal found that a harassment grievance should only be between the employer and the union or employee. A finding of harassment, said the court, means the employer didn’t meet its duty of providing a workplace free of harassment. This duty would involve instructing and disciplining its employees to prevent harassment. Therefore, it is the employer’s responsibility to determine a course of action against the harasser, not the arbitrator or court, said the appeal court.

For more information see:

Association du personnel de soutien du College c. College d'enseignement general et professional, 2012 QCCA 441 (Que. C.A.).

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