Canadian HR Reporter

CANADIAN HR REPORTER JANUARY 2020 12 NEWS found that the arbitrator's deci- sion-making process was justified, transparent and intelligible. But in October 2019, the Court of Appeal of Alberta disagreed. For one, it felt the decision under the second element of the Wm. Scott test was unreasonable. The court also felt that the arbitrator downplayed the seriousness of the misconduct, as it was sexual assault. The arbitrator did not specifi- cally call the misconduct a sexual assault, preferring instead to call it a "personal assault," "incident," "contact" or "conduct," said the majority of the court of appeal (there was one dissenting vote). "The words chosen suggest an attempt to minimize the type of misconduct… it was unreason- able for the arbitrator to use am- biguous and vague language to analyze the misconduct." The court of appeal also found that the arbitrator didn't ade- quately consider the interests of all employees when it came to the man returning to the workplace. "The fact that there was no pat- tern of misconduct or that this was an isolated incident does not lead to the conclusion that future co-workers could be confident or assured of a workplace free of such incidents in the future," it said. The court of appeal also looked at the arbitrator's decision that the misconduct fell into the category of "sexual annoyance" harass- ment, based on the book Sexual Harassment in the Workplace by Arjun Aggarwal. "Whether the misconduct is sexual annoyance or sexual coer- cion provides little guidance to ar- bitrators about whether the mis- conduct is serious or not… The arbitrator's categorization led her astray and caused her to focus on factors that are not current with present day analysis of sexual as- sault and are inconsistent with the social context and the evolving at- titudes of what is acceptable in the workplace," said the court. "A finding that sexual assault is serious misconduct is consistent with the growing concerns for safety and respect in the work- place and other policies and leg- islation whose goal is to protect vulnerable groups, and it will assist employers and unions in fighting against the prevalence and damaging effect of this intol- erable conduct... It is objectively clear that sexual assault is wrong and acknowledging that sexual as- sault is serious misconduct sends a strong message to all employees about societal values and accept- able workplace behaviour." Social context The court of appeal takes a very holistic look here, says Gregson. And while you still have to apply proportionality, in looking at the Wm. Scott case for example, and context is still going to be impor- tant when looking at discipline in these cases, "they've massaged the context and really brought to light that this is the context in which the law is being applied," she says. "I haven't often seen the court come out and say that 'because society has changed, we almost need to switch the lenses in our glasses.'" The case sheds light on the different viewpoints of decision- makers as history unfolds and events overtake us, says Sari Springer, office managing partner at Littler in Toronto. "Back in 2016, when the arbi- trator initially heard the case... it was really before the #MeToo movement had any traction. And, so, I suppose at the time perhaps it wasn't quite so alarming. But then as the #MeToo movement got more traction and this issue became far more salient, then I think cooler heads prevailed. And, finally, the Court of Appeal recognized that 'Come on, this is sexual assault, it's got to be a zero- tolerance assessment and the ter- mination was not excessive. And the city did the right thing.'" That's not to say that the court took judicial notice of the #MeToo movement — that wouldn't be ap- propriate legal analysis — but any decision-maker is going to be in- fluenced by not only the law but the social context, she says. "They don't live under a rock. And, so, I think they do need to be more attuned to how these events are perceived. So, when the arbi- trator way back when was initially analyzing it, she said, more or less, 'Oh, it's just a one-time occur- rence. And the grievor otherwise had an unblemished record, and the victim didn't really seem too upset about it.' And, so, basically, the bottom-line analysis was the termination was too excessive, which is certainly not the take of the Court of Appeal." 'Egregious act' It's not rocket science, but even a one-time incident of sexual harassment can be egregious enough to warrant a dismissal, says Springer. "That's the takeaway… There will be many circumstances where a one-time occurrence will not justify a dismissal and that's more or less the norm. But when there's an egregious act, and even if it's a one-time occurrence and the em- ployee otherwise has an unblem- ished record, it just shouldn't be condoned. Basically, it's what the court is saying." However, this decision does not necessarily establish that dis- missal is the automatic penalty for sexual assault, says Gregson. A central issue to this case was the fact that the male employee wouldn't admit to his misconduct, so there was dishonesty at play, says Gregson. "They explicitly say the com- mon law and statutory obligation to provide a safe workplace is a contextual factor. So, dishonesty is not just aggravating in looking at the character of the grievor and whether or not dismissal was the correct sanction to put into place, but you can also look at it to say, 'Well, this is the context in which this is happening. Can the em- ployer return this person back to the workplace and guarantee all employees, not just the grievor, a safe workplace?'" In addition, the arbitrator fo- cused more on the impact on the woman and the fact that the two employees wouldn't really work together in the future, she says. "[She] didn't take a broader perspective of 'Given the grievor's conduct, can the city as the em- ployer place that person back into the workplace and have a more general confidence that they're still providing a safe workplace?'" Policies, investigations Preventively, there's only so much an employer can do, but having a good policy, and revisiting that policy — looking at the definitions for harassment or misconduct, for example — is important, along with doing annual reviews with employees, says Springer. That's evident in this case where the grievor was dismissed in part because of the breach of the policy, she says. "It's [about] emphasizing the culture of your employer and what you will and will not condone, and so that goes to the OHS aspect as well. But it also then will help you through the application right through any sort of investigations you're going to go through. And then if you need to do any sort of sanctioning, then you can ref- erence that pulse, you have that touchstone [where] you've made a definition, you've taken a stand and your employee knows what to do and not to do." As for the investigation, some- times, the most difficult part is the credibility assessment, says Springer. "You need to make find- ings of credibility and then deter- mine whose version of events is more plausible based on the bal- ance of probabilities." When it's a he said/she said situ- ation like this one, it's often about gathering surrounding or cir- cumstantial information to help corroborate a witness, she says. That can mean talking to people the victim communicated with shortly after the incident or hav- ing the victim substantiate that they went to see a mental health expert because of the incident. "It's often the surrounding cir- cumstances that help to inform me about the credibility issues," says Springer. "Because… oftentimes, in these incidences, it's just two people in a room. And you don't have the smoking gun, so to speak, of a wit- ness who would have been able to be right there to corroborate one way or the other." Even one-time incident of harassment 'egregious' ALBERTA < pg. 3 Credit: Scott Cressman (istock) The Court of Appeal of Alberta recently overturned an arbitrator's decision concerning the termination of a worker. 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