When an Arbitrator finds there has been a breach of the collective agreement or that an employer's discipline was unreasonable, there are a number of orders the Arbitrator can make.
One matter that Arbitrators can deal with in workplace sexual harassment cases is deciding whether the employer’s discipline of the harasser was reasonable. If they find that the discipline was too harsh or inadequate, Arbitrators can impose what they consider a just penalty. If the collective agreement sets out a penalty for certain conduct the Arbitrator cannot impose a different penalty.
Generally, Arbitrators will consider:
Arbitrators must consider the interests of all employees. They must consider whether safety could be an issue if an employee is returned to the workplace. The employer's policies and practices with respect to sexual harassment and their legal responsibilities under occupational health and safety laws must also be considered.
Arbitrators cannot rely on assumptions about how victims of sexual harassment react. Harm or distress experienced by the victim can be an aggravating factor but its absence cannot make the conduct less serious.
Although sexual assault is a very serious form of sexual misconduct in the workplace, sexual harassment does not need to involve physical touching for it to be considered serious. Written or verbal comments can also be considered serious misconduct, especially if they involve threats of any kind.
Arbitrators cannot rely on classifying sexual harassment as more or less serious based solely on whether some employment benefit depended on the victim going along with the conduct (quid pro quo harassment). This may be one factor but it is not the only factor that determines how serious the conduct was.
As well as considering the seriousness of the misconduct, Arbitrators will also consider the circumstances of the employee who has received the penalty. This includes…
Progressive discipline is not appropriate in every case. Some offences are so serious that they warrant discharge. An employee does not necessarily get one free sexual harassment before he loses his job. ~ United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc (Ontario Labour Arbitration)
If the person is honest about what happened and takes responsibility for their actions this can be considered a mitigating factor. On the other hand, if the person does do not take responsibility it can be an aggravating factor.
Because the safety of other employees must be considered, the Arbitrator will consider if the employee can be trusted to not re-offend.
The grievor knew the behaviour was wrong, but he did it anyway and then was not candid with them about what happened. A breakdown in trust will have a significant impact on the penalty and in many cases is determinative. ~Calgary (City) v Canadian Union of Public Employees Local 37 (Alberta Court of Appeal)
Whether the person apologized, when they apologized and what they did after the apology can be considered. If the person did not apologize until after they were caught, the Arbitrator might not consider it to be a sincere apology. If the person has taken steps to change, such as attending counselling, their apology may be given more consideration. If the person does not testify at the hearing and apologize under oath, the Arbitrator could consider this to be a reason to impose a harsher penalty.
Whether the person knew the behaviour was wrong and whether they meant to sexually harass the victim may not be reasons for a lesser penalty. What is more important is whether the behaviour was something the person should have known was wrong.
A court can review the Arbitrator’s decision based on whether it was reasonable. The court considers how the decision was arrived at as well as the outcome. Both must be reasonable. The decision-making process must be justified, transparent, and intelligible. The outcome must fall within a range of legally acceptable outcomes based on the facts of the case.
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