Timeliness and Allegations of Workplace Sexual Harassment

A recent arbitral decision, Ottawa (City) v Ottawa-Carleton Public Employees’ Union, Local 503, 2016 CanLII 59377 (ON LA) (Burkett), highlights one of the challenges that can face an employer when addressing an allegation (or allegations) of workplace sexual harassment.

In Ottawa, a unionized shelter support worker who had no prior history of discipline, was alleged to have harassed five female coworkers a number of times over a period of several years. While conducting its investigation into the complaints, a major challenge facing the employer was the amount of time that had passed since the alleged misconduct took place. In some instances, the complainants could not recollect specific details about the misconduct complained of, such as the month in which the comments and behaviours took place. Nevertheless, the employer concluded, based on all the evidence, that the misconduct complained of did in fact occur, and that the perpetrator’s misconduct was indicative of a “persistent pattern of highly inappropriate and offensive, unwelcome, sexual comment or behaviour”. In accordance with its workplace policies, the employer terminated the perpetrator’s employment for just cause.

The perpetrator grieved his termination, issuing a blanket denial regarding all of the allegations filed against him. The perpetrator emphasized the fact that the complainants had failed to come forward in a timely manner, suggesting that the complainants had conspired against him.

In his decision Arbitrator Kevin Burkett upheld the employer’s decision to terminate the perpetrator’s employment for just cause. The Arbitrator concluded that in spite of the passage of time, and the fading memories of the five complainants, a termination for cause was justified in the circumstances. The following factors weighed in favour of the employer’s actions:

  • The complainants were all found to have been credible witnesses (i.e. they were telling the truth);
  • The fact that there were five complainants weighed in favour of a finding that the perpetrator had in fact engaged in the conduct complained of;
  • There was no evidence that the five complainants had colluded or conspired to have the perpetrator’s employment terminated for improper reasons;
  • None of the complainants were aware at the time that others were being subjected to similar abuse – they felt that their cases were isolated;
  • There were no other witnesses who could corroborate the allegations of each complainant in each case – they were alone with the perpetrator when each of the incidents took place); and
  • The complainants did not believe that the perpetrator would or could be terminated, and felt at the time that even if they filed a complaint, they may be forced to work alone with the perpetrator again.

Arbitrator Burkett considered mitigating factors that may have weighed in favour of reducing the perpetrators penalty from a termination to a “lengthy suspension”, such as the perpetrator’s prior discipline-free record. The arbitrator concluded that if the circumstances were different, an argument could be made that a lengthy suspension would have served to deter and rehabilitate the perpetrator. Nevertheless, and especially because the perpetrator had completely failed to exercise any remorse for his misconduct, the termination of the perpetrator’s employment was justified in the circumstances.

The Ottawa decision serves to highlight the fact that workplace sexual harassment can form the basis for the termination of a perpetrator’s employment, even if it is only complained of or discovered several years after the fact.

A full copy of Arbitrator Burkett’s decision can be found here:

Key Takeaways for Employers include:

The law requires employers to constantly monitor their work environments to make sure they are free of sexually harassing behaviours. Proactive steps to maintain a harassment-free environment will help make sure that sexual harassment does not take root, and is not given a chance to escalate. The following best practices can minimize incidents of workplace sexual harassment and an employer’s liability in the event of an incident.

  • Pursuant to Bill 132, employers must draft, implement and consistently enforce key workplace policies which deal with workplace sexual harassment;
  • All employees must be trained on the appropriate policies and processes for dealing with an allegation of workplace harassment and/or workplace sexual harassment;
  • Pursuant to Bill 132, employers must promptly investigate each and every allegation of workplace harassment and/or workplace sexual harassment;
  • All employees should be made aware that the law seeks to protect a complainant’s right to come forward “after the fact”, even if a significant period of time has passed; and
  • A complainant cannot be “penalized” for coming forward with a legitimate complaint.

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