Canadian HR Reporter

CANADIAN HR REPORTER JANUARY 2020 NEWS 3 Alberta court cites 'social context' in sexual assault case at City of Calgary Says arbitrator focused on factors 'that are not current with present-day analysis of sexual assault and inconsistent with the evolving attitudes of what is acceptable at work' BY SARAH DOBSON SOCIAL norms change over time, as seen with the #MeToo movement, which means expec- tations and perceptions just aren't the same when it comes to the workplace and harassment. That was apparent in a recent decision from the Court of Appeal of Alberta, which disagreed with an arbitrator's decision regarding the termination of a male employ- ee who sexually assaulted a female employee. The case is interesting because the court talked a lot about norms in society and how society is tak- ing a stand against sexual harass- ment, says Tessa Gregson, a law- yer at Field Law in Edmonton. "Some of those social shifts and social change and what we expect of workplaces is now being incor- porated in the legal analysis, and while I think that perhaps may have always been the case, I think it's much more clear in this case that that is something to be incor- porated, especially when they talk about… myths around sexual as- sault and the impact on the victim or the complainant." An arbitrator is always going to look at arbitral jurisprudence to assess the range of discipline and what is reasonable, along with the facts and context, she says. "But the Court of Appeal is saying, 'OK, but we've changed, society has changed. And so you, therefore, need to look at the ju- risprudence or the case law with almost a grain of salt or with an eye to the fact that does this case still reflect the current societal view on sexual harassment in the workplace?'" Background on case The case involved a City of Cal- gary employee who was termi- nated after an investigation de- termined he had grabbed and squeezed a female employee's breast without her consent. The city found that the allegation was substantiated and the misconduct constituted a very serious breach of its respectful workplace policy. The city did not implement progressive discipline because the man had failed to acknowl- edge any inappropriate behav- iour or apologize for the conduct. The employer also concluded it was not safe to return him to the workplace because it could not trust him to be honest about his conduct. Initially, the employee had de- nied any physical contact, but after discussions with the union representative, he admitted to touching "of an innocent nature." The Canadian Union of Pub- lic Employees, Local 37, grieved the termination. Ultimately, the arbitrator agreed with the union, using the three-part test set out in the 1976 decision Wm. Scott & Company Ltd. and Canadian Food and Allied Workers Union, Local P-162 for assessing termi- nation grievances: Was the em- ployee given reasonable and just cause for some form of discipline by the employer? If so, was the employer's decision to dismiss the worker an excessive response? If the arbitrator considers the dis- charge excessive, what alternative measure should be substituted as just and equitable? The arbitrator concluded that the misconduct was at the lower end of the sexual harassment spec- trum because it was a single inci- dent, the woman did not appear to be traumatized in any significant way, there was no evidence the incident was anything but an im- pulsive, ill-thought-out incident and there was no evidence of any persistent conduct that would be considered as creating a hostile or unsafe environment. The male employee also had a long service record, a clean disci- plinary record and would face eco- nomic hardship. And the arbitrator concluded that the risks of return- ing the man to the workplace were minimal, plus the two employees worked in different locations. She concluded that a lesser dis- ciplinary response was justified and directed the city to reinstate the employee without a loss of se- niority, following a suspension of nine months without pay. After the city applied for judi- cial review, the reviewing judge EVEN> pg. 12 In today's evolving economy, people are your biggest asset. Unleash their potential. January 22-24, 2020, Metro Toronto Convention Centre. Register now to attend Canada's largest HR conference & trade show hrpaconference.ca POWER UP HR

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