Unremorseful Sexual Harasser Was Fired For Cause: Court Reproves Arbitrator

by Dentons
Contact

An unremorseful mail room clerk’s sexual harassment and grabbing of a contract worker was just cause for dismissal, the Ontario Divisional Court has held, overturning and criticizing an arbitrator’s decision.

A female cleaner employed by a cleaning contractor in the building complained that the mail room clerk tried to kiss her in an elevator, that she pushed him away, after which he grabbed her buttocks.  She reported that the employee had grabbed her buttocks in the past, and that it had “been going on for a long time”, four to five years, and she wanted it to stop.  When confronted, the mail room clerk did not deny the incident, but he alleged that it had been consensual.

The employer fired the mail room clerk. A unionized employee, he challenged the firing at arbitration, but  – curiously – he did not testify at the hearing.  The arbitrator reinstated the employee, noting that after another employee had confronted him about sexually harassing her, “it does not appear that [the other employee] was bothered by him again.”

On judicial review, the court noted that the mail room clerk had, for approximately five years, engaged in behaviour that included speaking and gesturing in a sexually suggestive way, performing a “sexy dance”, blowing kisses, and sometimes grabbing the contract worker’s buttocks.  The court found that the buttock-grabbing constituted sexual assault, and all of the behaviour taken together constituted sexual harassment.

The court, in a reproof of the arbitrator, stated:

“The arbitrator’s reasons demonstrate that he was keenly aware of Mr. Haniff’s lack of remorse and insight. Yet he chose to reinstate Mr. Haniff on the basis of what he regarded as two “significant” pieces of evidence. First, another cleaner was able to get Mr. Haniff to stop sexually harassing her when she threatened him with violence by showing him her fist and the same cleaner also testified that the Complainant was a strong woman who could stand up for herself. Second, the Complainant did not want Mr. Haniff discharged.

“Both these considerations were irrelevant and represent a dangerous step backwards in the law surrounding the treatment of sexual misconduct in the workplace. It is not the responsibility of employees to protect themselves from being sexually harassed or assaulted by being strong or threatening violence. Employees are entitled to a workplace that is free from sexual harassment and employers have a responsibility to ensure that their employees are not exposed to this type of behaviour. The legislature has reinforced these obligations in Bill 168, which involved a series of amendments to the Occupational Health and Safety Act that deal with violence and harassment in the workplace.”

Further, the court found that the mail room clerk’s “so-called ‘apology’” letter to the complainant was not really apologetic,  and that he lacked remorse and insight.  There was no evidence that he had learned from his experience, had insight into his behaviour or was likely to take steps to ensure that it did not happen again.

In the result, the employer had just cause to dismiss the mail room clerk.  The arbitrator’s decision was overturned.

This case demonstrates the courts’ strong stance against sexual harassment in the workplace, particularly in light of Bill 168, and is consistent with earlier decisions such as Bannister v. General Motors of Canada Ltd., 1998 CanLII 7151 (ON CA).

Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011, 2013 ONSC 2725 (CanLII)

Written by:

Dentons
Contact
more
less

Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!