Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers' Union of Canada,Local 3011 et al.

[Indexed as: Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers' Union of Canada, Local 3011]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Sachs, O'Neill and Thomas JJ.

May 22, 2013

116 O.R. (3d) 1 | 2013 ONSC 2725

Case Summary

Employment — Labour relations — Grievance arbitration — Union grieving termination of employee for sexually harassing cleaner — Arbitrator finding that employee had committed sexual harassment and sexual assault in workplace but that appropriate penalty was lengthy suspension rather than termination — Employer's application for judicial review allowed — Employee engaging in impugned conduct over period of five years and showing no remorse or insight into his conduct — Arbitrator improperly taking into account facts that employee had stopped harassing another cleaner when she threatened him with violence and that complainant had said that she did not want employee discharged — Arbitrator's decision unreasonable.

H's employment was terminated based on allegations that he sexually harassed a contract employee, a cleaner. The union filed a grievance. The arbitrator found that H had committed acts of sexual harassment and sexual assault in the workplace but that the appropriate penalty was a lengthy suspension rather than termination. He ordered the employer to reinstate H. The employer brought an application for judicial review, seeking to set aside that aspect of the award.

Held, the application should be allowed.

The arbitrator accepted that for approximately five of his six years of employment, H had sexually harassed and sexually assaulted the complainant and other contract cleaners. He was aware that H showed no remorse or insight into his behaviour, yet chose to reinstate him on the basis of what he regarded as two "significant" pieces of evidence: another cleaner was able to get H to stop sexually harassing her when she threatened him with violence and the same cleaner described the complainant as a "strong woman who could stand up for herself"; and the complainant had said that she did not want H discharged. Both of those considerations were irrelevant and represented a dangerous step backwards in the law regarding the treatment of sexual harassment in the workplace. The arbitrator's decision was unreasonable. [page2 ]

Cases referred to

Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Ontario Public Service Employees Union v. Ontario (Ministry of Labour), [2008] O.J. No. 4557, 172 A.C.W.S. (3d) 542 (Div. Ct.); Professional Institute of the Public Service of Canada v. Communications, Energy and Paperworkers Union of Canada, Local 3011 (Haniff Grievance), [2012] O.L.A.A. No. 612, 228 L.A.C. (4th) 180, 113 C.L.A.S. 121 (Weatherhill); Simcoe County District School Board v. Ontario Secondary School Teachers' Federation, 2009 1375 (ON SCDC), [2009] O.J. No. 227, 245 O.A.C. 262 (Div. Ct.); Trillium Health Centre v. C.U.P.E., Local 4191, 2001 62093 (ON LA), [2001] O.L.A.A. No. 789, 102 L.A.C. (4th) 48 (Surdykowski); Zehrs Markets/Real Canadian Superstore v. U.F.C.W., Local 1977, [2010] O.L.A.A. No. 717, 202 L.A.C. (4th) 308 (Craven)

Statutes referred to

Occupational Health and Safety Act, R.S.O. 1990, c. O.1 [as am.]

APPLICATION for judicial review of a labour arbitration award.

D. Bruce Sevigny and Marie Dupuis, for applicant.

David Jewitt, for respondent Communications, Energy and Paperworkers' Union of Canada, Local 3011.

The judgment of the court was delivered by

SACHS J.: —

Nature of the Proceeding

[1] The applicant seeks judicial review of a labour arbitration award dated November 29, 2012 [ [2012] O.L.A.A. No. 612, 228 L.A.C. (4th) 180], issued by Arbitrator J.F.W. Weatherhill (the "Award").

[2] Mr. Haniff was terminated from his employment with the applicant based on allegations that he sexually harassed a contract employee. The respondent Union filed a grievance with respect to Mr. Haniff's termination and the matter proceeded to arbitration. The arbitrator found that Mr. Haniff had committed acts of sexual harassment and sexual assault in the workplace, but also found that the appropriate penalty was a suspension on the record, rather than termination. Consequently, he ordered the applicant to reinstate Mr. Haniff. The applicant seeks to set aside this aspect of the Award.

[3] For the reasons that follow, I would allow the application and order that the Award be set aside with respect to penalty and that the applicant's decision to terminate be upheld. [page3 ]

Factual Background

[4] Mr. Haniff was hired by the applicant in May 2006, and worked for the applicant as a mail room clerk. A female cleaner employed by a cleaning contractor in the building where Mr. Haniff worked (the "Complainant") reported to the applicant that on June 14, 2012, Mr. Haniff entered an elevator with her and tried to kiss her. The Complainant pushed him away. After she did so, Mr. Haniff grabbed her buttocks.

[5] The Complainant reported the incident immediately. She also reported that this was not the first time that Mr. Haniff had touched her buttocks and that she always told him to stop. She stated that it had "been going on a long time", for "4 [to] 5 years" and "[s]he only wants it to stop".

[6] When the applicant interviewed Mr. Haniff he did not deny the incident. However, he contended that the Complainant had consented to his behaviour and had consented to similar behaviour in the past. The Complainant denied the existence of any consent.

[7] The applicant placed Mr. Haniff on administrative leave with pay for a few days until they had looked into the matter. On June 20, 2012, they discharged him. On July 16, 2012, the respondent Union filed a grievance on behalf of Mr. Haniff and requested that his employment be reinstated.

[8] The grievance proceeded to arbitration. Mr. Haniff was not called to testify at the arbitration hearing. The arbitrator released the Award on November 29, 2012.

The Arbitrator's Award

[9] The arbitrator had no hesitation about accepting the evidence of the Complainant, including her evidence that she had not consented to any of the conduct that formed the basis for her complaints. He also had no hesitation about accepting the evidence of another cleaner who had experienced similar harassment from Mr. Haniff. With respect to Mr. Haniff's conduct prior to the incident in the elevator, the arbitrator stated the following [at para. 4]:

It was known by the complainant and the other Cleaners that the grievor was given to what might somewhat euphemistically be called sexual banter. He frequently spoke and gestured in a suggestive way; at lunch or breaks, he would often perform his "sexy dance"; if he encountered the complainant or another Cleaner alone, he would blow her a kiss, or occasionally grab her buttocks. He engaged in this sort of behaviour over the past five years or so, despite being asked, by the complainant and others, not to do so. Throughout this time, no complaint was made to the employer nor, it would appear, to Hallmark or Colonnade about the grievor's behaviour although, as I have noted, he was asked by the complainant [page4 ]and others to stop. The complainant testified that she had not previously complained, as she was afraid to lose her job and that the grievor was, in effect, in a superior position.

[10] Regarding Mr. Haniff, the arbitrator found [at para. 9] that whatever Mr. Haniff's illusions were, he "ought to have known that his actions were improper". He determined that the actions constituted sexual harassment and that the conduct involving physical contact "amounted, strictly speaking, to sexual assault".

[11] The arbitrator reviewed a number of sexual harassment cases and determined that the case law had defined two major categories of sexual harassment: sexual coercion, where an employee's employment status is, or terms of employment are, threatened; and sexual annoyance or poisoned environment harassment. He concluded [at para. 17] that these types could "best [be] considered as extreme points on a continuum", but found that "[t]he value of the distinction" was that it prompted consideration of the "seriousness of this serious offence, and for a consideration of all of the circumstances that bear on the determination of the appropriate penalty".

[12] The heart of the arbitrator's decision on penalty appears in the following paragraphs [at paras. 18-19]:

In the instant case, while the grievor did not have great seniority, he had been employed for some six years, and there is no discipline record. He admitted the events of June 14, but sought to diminish their effect by saying the complainant enjoyed his advances. That was not true, and if the grievor believed it was, he was deluding himself. As to the possibility of reinstatement, two pieces of evidence are, I think, significant. One is in the testimony of the second Cleaner who, when harassed by the grievor one time too many, showed him her fist and made it clear he had gone too far: it does not appear that she was bothered by him again. The other is that the complainant herself did not want the grievor discharged. In this respect, the testimony of the other Cleaner is also noteworthy: the complainant, she said"is a strong woman, she knows how to stand up for herself."

While the grievor's offence was a serious one and merits substantial discipline, it is my view in all of the circumstances that discharge went beyond the range of reasonable disciplinary responses to the situation and was without just cause. The case, in my view, is not one in which reinstatement cannot properly be effected. A lengthy period of suspension should therefore be substituted for discharge, and should appear on the grievor's record.

Standard of Review

[13] There is no dispute that the standard of review of a labour arbitration award is reasonableness: Simcoe County District School Board v. Ontario Secondary School Teachers' Federation, 2009 1375 (ON SCDC), [2009] O.J. No. 227, 245 O.A.C. 262 (Div. Ct.), at para. 15. In applying the reasonableness standard, the court [page5 ]must consider the justification, transparency and intelligibility of the decision-making process, and whether the decision falls within a range of possible acceptable outcomes that are defensible in light of the facts and the law: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 47.

[14] As this court has previously stated"s. 48(17) of the Labour Relations Act, 1995, S.O. 1995, provides arbitrators with broad discretion when dealing with penalty in the absence of a specific penalty provision in a collective agreement": Ontario Public Service Employees Union v. Ontario (Ministry of Labour), [2008] O.J. No. 4557, 172 A.C.W.S. (3d) 542 (Div. Ct.), at para. 7.

[15] In this case there is no "specific penalty" clause in the collective agreement that would have required the arbitrator to impose a particular penalty once a finding of misconduct was made.

Analysis

[16] The appellant submits that the arbitrator's penalty decision cannot be justified having regard to (a) Mr. Haniff's record of past misconduct that had persisted for most of his period of employment; (b) Mr. Haniff's apparent refusal to accept that "no means no"; (c) the gravity of Mr. Haniff's action that constituted sexual assault; (d) the lack of any evidence of remorse, acknowledgment or contrition; and (e) the arbitrator's reliance on inappropriate factors. It also argues that reinstating Mr. Haniff could potentially put it, as the employer, in breach of its obligations to provide a workplace free from violence and harassment for its other employees, obligations that have been reinforced by the amendments to the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, under Bill 168, An Act to amend the Occupational Health and Safety Act with respect to violence and harassment in the workplace and other matters, 1st Sess., 39th Leg., Ontario, 2009 ("Bill 168").

[17] In my view, all of the appellant's submissions have merit.

[18] Prior to the offence giving rise to the complaint, Mr. Haniff had been employed by the appellant for six years. The arbitrator accepted that for approximately five of those years he engaged in behaviour that included speaking and gesturing in a sexually suggestive way to the Complainant and the other contract cleaners, performing a "sexy dance", blowing kisses to the Complainant and the other cleaners, and sometimes grabbing the Complainant's buttocks. This behaviour includes what would constitute sexual assault (the grabbing of the buttocks) and, viewed cumulatively, constitutes sexual harassment. [page6 ]

[19] When Mr. Haniff was asked by the Complainant and others to cease this behaviour, he ignored their requests. This inability to understand that "no means no" was obvious on June 14, 2012. When Mr. Haniff tried to kiss the Complainant in the elevator she pushed him away, thereby demonstrating her clear lack of consent to his actions. Instead of ceasing to assault her, Mr. Haniff assaulted her again by grabbing her buttocks.

[20] As the case law makes clear and as the arbitrator acknowledged, sexual harassment and sexual assault in the workplace are serious matters. In Re Trillium Health Centre v. C.U.P.E., Local 4191 (Borgona Grievance), 2001 62093 (ON LA), [2001] O.L.A.A. No. 789, 102 L.A.C. (4th) 48 (Surdykowski), at p. 57 L.A.C., Arbitrator Surdykowski wrote the following:

Sexual harassment or assault is intolerable. It is one of the most frightening and damaging things that one person can do to another. The effects of sexual harassment or sexual assault on the victim can be extreme and long-lasting, and incidents of this misconduct can disrupt the workplace. I am satisfied that sexual harassment falls within the same category of serious misconduct as theft, and that discharge is prima facie the appropriate penalty even in the case of a first offence. This does not mean that discharge will necessarily be appropriate in every case, but the onus is on the Union and the grievor to demonstrate that it is appropriate to mitigate the penalty in a particular case.

[21] As this quote states and as the arbitrator found, not every case of sexual harassment or assault demands a discharge. There are cases where it is appropriate to substitute a lesser penalty, particularly where the conduct falls on the less serious end of the continuum and the employee has demonstrated remorse for his behaviour.

[22] In this case, the Complainant was not the only cleaner that Mr. Haniff had harassed. He had harassed another cleaner to the point where that cleaner had to threaten violence (showing her fist) in order to get him to stop his behaviour.

[23] Mr. Haniff showed no remorse for or insight into his behaviour. He insisted to his employer that the Complainant had consented to his actions. When it was made clear to him that she had not, he did not accept that this was the case. Instead, he continued to take the view that it was too bad that she had a different perspective on events than he did. This is made clear from his so-called "apology" to the Complainant that reads as follows:

To [the Complainant],

I am writing to you because I really regret what took place between us and that it has to go to arbitration. [page7 ]

I have been told that you have said that you did not consent to kissing or touching me and I understand that, from your perspective, something negative happened between us. I did not understand that you did not want our personal relationship to continue -- if I had known I would have ended it earlier. I thought we had a personal relationship.

I feel badly that this is going to arbitration and that you have to go through this. It was between you and me. I want you to know that I do not wish you any ill will if you have to testify. My job means everything to me which is why I have to go to arbitration but I'm very sorry that you have to go through it too.

Sincerely,

Alfred Haniff

[24] The arbitrator found that Mr. Haniff was deluded and that he ought to have known that his actions were improper. Nowhere in this letter does Mr. Haniff acknowledge his delusions or the improper nature of his conduct. He did not testify before the arbitrator nor was there any evidence of any kind that Mr. Haniff had learned from this experience, had some insight into his behaviour and had taken or was willing to take steps to ensure that it did not happen again. Without this evidence, neither the employer nor the arbitrator could have any assurance that, if Mr. Haniff were reinstated, he would not continue to pose a threat to the Complainant and other employees.

[25] 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.

[26] 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. In Zehrs Markets/ Real Canadian Superstore v. U.F.C.W., Local 1977 (8494 Grievance), [2010] O.L.A.A. No. 717, 202 L.A.C. (4th) 308 (Craven), at para. 34, [page8 ]another Ontario arbitrator noted an employer's obligations under this legislation as follows:

At the same time, however, his failure to acknowledge wrongdoing is a serious aggravating factor. Nor should I disregard the likely consequences for the morale of the complainant and her co-workers, and for the Company's ability to carry out its obligations with respect to workplace violence and harassment under the Occupational Health and Safety Act and sexual harassment under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, were I to return the grievor to the workplace notwithstanding his failure to admit to what he did and that it was wrong.

[27] It was also inappropriate in this case to imply that the decision as to whether Mr. Haniff should be discharged was in any way the Complainant's. First, it is not her decision to make; she is neither the employer nor even an employee of Mr. Haniff's employer. Second, whether she can cope with Mr. Haniff's return to the workplace says nothing about the risk he poses to other contract cleaners or other female employees he may be exposed to as he performs his duties. Third, the pressure on complainants in these situations is intense: they fear repercussions, both from their employer and from other employees. It is not easy to come forward. In this case, no one did for five years. Once they do come forward, it is often difficult for complainants to live with the fact that they might cost someone their job. Thus, the Complainant may have had any number of reasons for saying that she did not want Mr. Haniff to be discharged -- reasons that have no bearing on the issue of whether he should in fact be discharged.

[28] These concerns with the arbitrator's decision support the conclusion that his decision to reinstate cannot be justified in that it falls outside of the range of possible acceptable outcomes that are defensible in light of the facts and the law.

Conclusion

[29] For these reasons I would allow the application, set aside the Award as to penalty and order that Mr. Haniff's termination be upheld. The parties agreed that whichever party was successful should be awarded $5,000 by way of costs. On this basis, the respondent Union is ordered to pay the applicant its costs, which are fixed at $5,000.

Application allowed.

End of Document