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).