Written by Daniel Standing LL.B., Editor, First Reference Inc.
The Court of Appeal of Alberta’s decision in Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388 (CanLII) overturns a decision on judicial review that upheld an arbitrator’s decision to reinstate an employee who had been terminated from his employment for sexual harassment. The decision serves as a powerful reminder that sexual assault is inherently serious and, when coupled with a breakdown in trust arising from the perpetrator’s dishonesty, a termination will likely be the result.
After investigating the complainant’s allegation that the grievor had grabbed and squeezed her breast without her consent, the City of Calgary dismissed the grievor. It found that the allegation was substantiated and amounted to a very serious breach of the City’s respectful workplace policy. It also noted in the termination letter that the grievor had initially denied any physical contact with the complainant but, after discussions with the union representative, admitted to touching of an innocent nature.
The grievance proceeded to a hearing before a sole arbitrator who applied the well-known three-part test for assessing termination grievances. The test asks whether there is reasonable cause for discipline, and if so, whether dismissal is an excessive response or whether an alternative measure should be substituted. The arbitrator found that the complainant was a credible witness and concluded that the misconduct as alleged had occurred. The arbitrator then considered the seriousness of the misconduct and concluded that it was at the lower end of the spectrum of sexual harassment since it was a single incident, the complainant did not appear to be significantly traumatized, and there was no evidence that this was anything but an impulsive and isolated incident. The arbitrator also considered mitigating factors such as the grievor’s long service record, his lack of disciplinary record and the financial hardship imposed on him and his family, as well as the City’s concern about the grievor’s lack of acknowledgement of his inappropriate behaviour or any apology for his conduct. While the arbitrator agreed that the lack of admission of wrongdoing was “troubling,” she concluded that the risks of returning the grievor to the workplace were minimal because there was no evidence of past misconduct and the grievor and complainant were not likely to work together in the future. She was convinced that the constellation of mitigating factors, and the circumstances of the misconduct justified the lesser disciplinary response and the dismissal was substituted with a nine-month suspension without pay.
Upon judicial review, the reviewing judge determined that the arbitrator’s decision-making process was justified, transparent and intelligible, and that the outcome fell within the range of possible and acceptable outcomes based on the facts and law. The judge was satisfied that the arbitrator had reviewed the relevant factors and arguments and that her characterization of the misconduct and assessment of the proportionality of the discipline and substituted penalty were reasonable.
The parties’ positions
The City appealed this decision, arguing that it was unreasonable for the arbitrator to characterize the misconduct as being at the “lower end” of sexual harassment. The City claimed there was a lack of evidence to support this conclusion, which goes against well-established law showing that this sort of conduct is very serious. It stated that the presumptive penalty for sexual assault is termination-by characterizing the misconduct as “harassment,” the arbitrator based her decision on an invalid premise about the seriousness of the misconduct which tainted the rest of her analysis. Finally, the City claimed that the arbitrator failed to properly account for the grievor’s dishonesty and failure to take responsibility for his misconduct. The Union relied primarily on the standard of review stating that the arbitrator’s decision was reasonable and entitled to deference.
The Court of Appeal’s analysis and decision
In its opening comments on the applicable standard of review of reasonableness, the Court noted that an arbitral award will be reasonable when the decision-making process was justified, transparent and intelligible, and when the result falls within a range of acceptable outcomes which are defensible in respect of the facts and the law.
The Court of Appeal focused on the second element of the three-part test which requires a contextual analysis of the misconduct, the grievor’s individual characteristics and surrounding circumstances. According to the Court, the arbitrator’s finding about the seriousness of the misconduct is at the heart of the City’s appeal and the fact that this case involved a sexual assault is crucial to the City’s argument that it was serious misconduct.
The Court noted the various definitions of sexual harassment that are found in statutes, case law and academic sources, as well as the employer’s own Respectful Workplace Policy. The weight of authority establishes that sexual harassment is a demeaning practice and a profound affront to the victim’s dignity. Sexual harassment that involves a physical component is even more serious since it rises to the level of sexual assault. The Court agreed with the City that the language used by the arbitrator, in falling short of calling it sexual assault, downplayed the significance of what occurred which coloured her whole analysis. The Court also found that the arbitrator misapplied the arbitral awards regarding categorization of various types of sexual misconduct. According to the Court, the characterizations of “sexual coercion” and “sexual annoyance” which the arbitrator referenced are inconsistent with the contextual analysis required and can lead the seriousness assessment astray. In this case, the arbitrator’s characterization of the conduct led her astray and caused her to focus on factors that are not current with a present-day analysis of sexual assault and are inconsistent with evolving attitudes of what is acceptable in the workplace. One such factor that the arbitrator considered was the complainant’s response to the sexual assault-she stated that the complainant did not “appear to have been traumatized in any way by the contact.” However, the Court stated that
“it is an error to rely on what is presumed to be the expected conduct of a victim of sexual assault.”
Since the impact of the assault on the complainant formed the basis of the arbitrator’s reasoning that a termination was disproportionate to the misconduct, it added to the unreasonableness of the award.
The Court was also critical of the arbitrator’s reference to certain arbitral precedents in her decision. It stated that
“[A]rbitrators must consider whether time and changing social values reveal precedents to be based on faulty assumptions about acceptable sexual conduct in the workplace.” In her award, the arbitrator referred to two arbitral decisions in which terminations of grievors were reversed in circumstances of sexual assault and other offensive behaviours. The Court stated that “[R]eliance on such precedents may well make the award unreasonable.”
Next, the Court of Appeal examined the City’s allegation that trust had broken down between it and the grievor as the reason for termination. The City concluded that it was not safe to return the grievor to work because it could not trust him to be honest about his conduct, which could compromise the City’s ability to provide a safe workplace for all of its employees. According to the Court, by focusing only on the interests of the complainant and the grievor, the arbitrator failed to adequately consider the interests of all employees. Whereas the arbitrator considered the risks of future harm to the complainant only, the legislation requires the City to protect all of its employees and to maintain safe and respectful workplaces. The arbitrator failed to weigh this important obligation in her analysis.
Finally, the Court noted that all of the evidence in the case supported the City’s view that the grievor could not be trusted and that safety was compromised. The grievor had been provided training on the Respectful Workplace Policy. He was aware that touching a breast was sexual harassment and he was aware that termination could flow from such misconduct. He did it anyway and was not honest with the employer about what had happened. According to the Court,
“A breakdown in trust will have a significant impact on the penalty and in many cases is determinative.”
In conclusion, the Court stated that a proper assessment of the second part of the three-part test leads to the following findings: Sexual assault is serious misconduct and there was a breakdown in trust which provoked real concerns on the part of the City about its ability to provide a safe and respectful workplace. With reference back to the standard of review, the Court concluded that the result did not fall within a range of acceptable outcomes that are defensible in respect of the facts and the law. As such, it allowed the appeal and remitted the matter for a rehearing before a different arbitrator.
The Court of Appeal made a number of powerful statements in its decision that are likely to be supportive of employers who take a hard stance against sexual harassment in their workplaces. This includes the protection of not only the complainant in a founded complaint, but also others in the workplace. Also, the decision contains useful comments in support of an employer who concludes that, because of an employee’s dishonesty during a harassment investigation, it can no longer trust the employee and must issue a termination to protect its workforce. The Court’s elaborations on the limits of deference will also prove helpful to employers who are considering a judicial review or appeal in circumstances where the arbitrator conducts a faulty analysis of the seriousness of the misconduct which leads to an unreasonable lessening of a disciplinary measure. As in this case, such a faulty analysis could be based on the language used by the arbitrator which downplays the significance of the misconduct, or a focus on irrelevant factors such as the complainant’s reaction to the harassing or assaultive behaviour.