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In a recent decision, Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers’ Union of Canada, Local 3011, 2013 ONSC 2725, the Ontario Divisional Court held that the discharge of an employee who had sexually harassed a co-worker was an appropriate penalty. The employee, a mail room clerk, tried to kiss and grab the buttocks of a woman who worked as a cleaner for a company that provided contract cleaning services in the building where the employee worked. The complainant alleged that this was not the first time the employee had tried to touch or grab her in an inappropriate way, and that his conduct had been going on for several years. The employee said that the complainant had consented to the conduct.
At first instance, the arbitrator accepted the complainant’s evidence, including the fact that she had not consented, but held that the appropriate penalty was a suspension rather than a termination, and ordered the employee to reinstated. The arbitrator relied on two factors that the Divisional Court considered to be irrelevant. First, another co-worker was able to get the employee to stop harassing her when she threatened him with violence. Second, the complainant did not want the employee to be terminated.
The Divisional Court held that consideration of these factors was a step backwards in the law regarding workplace harassment. The Divisional Court held that termination was the appropriate remedy:
“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”
This case is yet another reminder of the zero tolerance for sexual misconduct and the seriousness of behaviour of this type. Employers will be held accountable for the conduct of their employees and need to be vigilant in their efforts to provide a safe working environment free of sexual harassment.