A recent arbitration decision upheld the termination of an employee for violating the Employer’s workplace violence and harassment policy. In Re Metro Rideau Store v. UNIFOR Local 414 (March 2018), Arbitrator Baxter found that on a balance of probabilities the terminated employee had sexually harassed a female co-worker, and that the Company’s decision to terminate the employment was not excessive. The employee at the time of termination was 61 years old, with eight years service and no prior disciplinary record. The Employer in this case was successfully represented by Emond Harnden’s own J.D. Sharp.
The facts giving rise to the discharge and resulting grievance were contested between the parties. The victim claimed that on March 8, 2017, while she sat in the lunchroom, she was approached from behind and touched inappropriately by the grievor. She stated that the following day, the grievor blocked her in an aisle and attempted to talk to her. She pushed past him to get away. By all accounts, each of these events caused considerable anguish and emotional distress on the part of the victim.
The grievor gave a different account of what happened. He admitted to approaching the victim from behind in the lunchroom and putting his hands on her shoulders. He also admitted that this startled the victim, but denied that any further touching occurred. Similarly, he claimed that on the following day he did pass the victim in the aisle, but did not try to block her path.
Arbitrator Baxter applied the approach to termination cases set out in Re William Scott & Co and Canadian Food and Allied Workers Union (1977). This approach requires an arbitrator to consider three questions:
- Has the employee given just and reasonable cause for some form of discipline by the employer?
- If so, was the employer’s decision to dismiss the employee an excessive response in all the circumstances of the case?
- If the discharge was excessive, what alternative measures should be substituted?
The first question, whether there was cause for discipline, required Arbitrator Baxter to assess the credibility of the witnesses. He found the victim’s demeanor to be genuine and that she did not appear to have contrived her performance. On the other hand, there were some discrepancies in the grievor’s testimony. The arbitrator concluded that on a balance of probabilities, the grievor had in fact touched the victim in an uninvited and inappropriate way.
The arbitrator next considered whether dismissal was excessive in the circumstances of the case. He noted that the arbitral jurisprudence makes it clear that sexual harassment falls within the most serious category of employee misconduct and therefore that discharge is the prima facie penalty. The exceptions to this general rule occur in instances when the grievor acknowledges and apologizes for the misconduct, and where there is a strong chance of rehabilitation with an extremely low likelihood of repetition. In such cases, discharge may not be the appropriate penalty.
Applying these principles to the facts at hand, Arbitrator Baxter noted that the grievor persistently denied that any misconduct occurred. He did not take responsibility for his actions, and refused to admit wrongdoing or apologize. The arbitrator concluded that there was no potential to reintegrate the grievor into the workplace and upheld the termination. The grievance was denied.
In our view
It is noteworthy that in rendering his decision, Arbitrator Baxter rejected the Employer’s position that a “zero-tolerance” approach should be applied that would uphold discharge in all cases where sexual harassment was established. Although he recognized that sexual harassment is “gross misconduct of the vilest kind”, and commented that the Employer’s “eloquent argument” was compelling, he refused to depart from the well-established principle that both mitigating and aggravating factors must be considered when determining the appropriate penalty. His rationale was that discharge is the “capital punishment of an employee” and in particular a long service employee, whose chances of being reemployed would be significantly impaired. It should only be imposed as a last resort in circumstances where there is no reasonable prospect that a lesser penalty would be sufficient to protect the interests of the employer, and provide sufficient correction and deterrence.