Get With The Times! The Alberta Court Of Appeal Weighs In On Sexual Harassment In The Workplace

The recent case of Calgary (City) v Canadian Union of Public Employees Local 37, 2019 ABCA 388 from the Alberta Court of Appeal marks an important decision on sexual misconduct in the workplace.

The City of Calgary (the “City”) terminated the grievor after investigating a complaint that the grievor had grabbed and squeezed the complainant's breast without her consent. The City determined that the allegation was substantiated and the grievor's conduct constituted a serious breach of its Respectful Workplace Policy and therefore terminated the grievor. The union grieved the termination, which proceeded to arbitration.

The arbitrator applied the test for assessing termination grievances, which entails asking:

If there is reasonable and just cause to impose some form of discipline; If so, was the employer's decision to dismiss the employee an excessive response in all the circumstances of the case; and finally If the discharge is excessive, what alternative measure should be substituted as just and equitable. The arbitrator determined that while the grievor had committed the misconduct and it justified a disciplinary response, the conduct was at the lower end of sexual harassment spectrum. This was based on the findings that the misconduct was a single incident, the complainant did not appear to be traumatized in any significant way, and there was no evidence of conduct that would create a hostile or unsafe work environment. This along with mitigating circumstances prompted the arbitrator to conclude that the misconduct justified a lesser penalty of a nine month suspension without pay and reinstatement of the grievor's employment with no loss of seniority.

The City applied for judicial review of the arbitrator's decision to the Alberta Court of Queen's Bench; the reviewing judge upheld the arbitrator's decision. The City then appealed to the Alberta Court of Appeal. The majority of Court of Appeal allowed the appeal and sent the matter to be re-heard before a new arbitrator.

Ultimately, the Court determined that, having found the assault occurred as alleged it was unreasonable for the arbitrator to conclude that the decision to dismiss the grievor was excessive given the circumstances of the case.

In coming to this conclusion, the majority engaged in an extensive discussion regarding sexual harassment in the workplace. The majority held that sexual harassment with a physical element is a form of sexual assault and constitutessexual harassment...