No Foul Called? Arbitrator Rules it as Still Foul
A recent arbitration decision involving sexual harassment — Woodstock (City) and C.U.P.E., Local 1146 (Pastoor)1— serves as a reminder of the importance of ensuring that appropriate policies are in force and that employees are progressively disciplined for their violations of those policies. This award comes in the context of Ontario Courts’ and tribunals’ increasing vigilance in upholding discipline for unwelcome harassment of all types.
In Woodstock, the Grievor worked for the City of Woodstock’s Park Department (the "Employer") for 20 years, most recently holding an Assistant Supervisor position. The Grievor had a clean disciplinary record throughout his employment until July 2009, when his employment was terminated for sexual harassment following a complaint filed by a 20-year-old female summer student.
The summer student who filed the complaint against the Grievor began working for the Employer in 2007, and reported directly to the Grievor in the summers of 2008 and 2009. The Grievor’s conduct towards the summer student included:
- referring to her and another employee who reported to the Grievor as the "dream team";
- sending text messages to her with sexual connotations;
- calling her on her personal phone around midnight to get a lift in the morning because he was partying late and would be hung over the next day; and
- inviting her 16-year-old sister, who was working her first summer at the Park, into his hot tub.
Following the filing of this complaint, the Employer became concerned and investigated whether the Grievor had acted similarly towards other current and former female summer students. The investigation uncovered that the Grievor had engaged in similar behaviour towards other female summer students for a period of at least six years, and that the Grievor had stored indecent pictures of female summer students on his work computer.
One former summer student testified at the hearing that she was warned by full-time employees that the Grievor had a tendency to make sexually inappropriate comments to female summer students. That same employee told the Grievor that his behaviour was inappropriate. Following this exchange, the Grievor ceased to make inappropriate comments to her, but continued to make similar comments towards other employees.
Despite this pattern of conduct, the Employer had never disciplined the Grievor for his actions. This time, however, the Employer terminated the Grievor’s employment.
The Grievor grieved his termination, adopting what the Arbitrator described as a "no foul called" line of defence. The Grievor testified that if the employees had notified him that his behaviour was unwelcome, he would have stopped immediately.
The Grievor noted that the summer student who had lodged the complaint, and another summer student, had sent him a picture of themselves with the words "dream team" and "you’re hot" on it. If his behaviour had been unwanted or inappropriate, he reasoned, they would have informed him.
The Arbitrator rejected the "no foul called" line of defence and held that some discipline was warranted. However, looking at all of the mitigating circumstances, the Arbitrator held that discharge was excessive. Although the Grievor had engaged in inappropriate behaviour for many years, the Arbitrator pointed to the Grievor’s 20 years of service without a record of discipline. The Arbitrator also found that the Grievor’s conduct was not one of the more egregious forms of sexual misconduct, as it did not involve an overt quid pro quo solicitation for sexual favours or improper sexual physical touching or assault.
The Arbitrator did find that the Grievor’s conduct was not consistent with that of a supervisor, and that the Grievor did not "inspire confidence" that he had "come to an epiphany as to the responsibility inherent in the position of the supervisor." The Arbitrator accordingly upheld the grievance, and reinstated the employee into a position commensurate with his seniority that would not involve the Grievor having supervisory responsibilities over employees. The Arbitrator’s Award also specifically states that the Grievor should be entitled, if necessary, to potentially rely on the displacement rights under the collective agreement.
Lessons for Employers
This case serves as a reminder of the following lessons for employers:
- The "no foul called" line of defence is unlikely to be a valid line of defence in the context of sexual harassment complaints in the workplace.
- Employers should ensure that mechanisms and policies are in place to proactively deal with harassment issues as they arise, and prior to complaints being filed.
- Employers should ensure that harassment policies are updated and address requirements under the Ontario Human Rights Code and the Occupational Health and Safety Act.
- Employers should ensure that training is provided to employees, particularly summer students, regarding harassment and the policies that are in place within the organization.
1 194 L.A.C. (4th) 274 [Woodstock]