Recent arbitration decisions confirm that conduct amounting to harassment or bullying will not be tolerated in unionized workplaces and that an appropriate investigation needs to be carried out in response to a complaint. The approach is consistent with decisions concerning harassment in non-union workplaces, increased legislative protections for workers and a changed social climate brought on by the #MeToo movement.
Below, we review a recent decision that reflects a new standard for shop floor conduct. We also examine decisions that confirm the employer’s duty to thoroughly investigate complaints and to institute restrictive measures as appropriate while the investigation is ongoing.
At a minimum, unionized employers need to set clear workplace harassment and violence policies and programs, educate employees about the policies, and enforce them consistently. Employers need to ensure that an effective and legally compliant investigation is performed when a complaint is made. Employees need to perceive that offenders will be disciplined appropriately and that complainants will be protected from retaliation.
It is equally important to set a culture that discourages harassment. Ideally, respect and tolerance should be felt in the work climate. As a starting point, unionized employers should consider whether their leadership and workplace as a whole reflects diversity, since “minority” members of an otherwise homogenous employee population are often targets of harassment or violence.
Employers should also keep in mind that harassing conduct is not limited to explicit comments or unwanted attention. For example, comments that denigrate one gender are also sexual harassment. Employers need to watch for these more subtle forms of harassment, particularly since they may point to a larger cultural problem.
In Teck Coal Ltd. and USW, Local 9346 (Guy Travis Termination), Re, 2018 CarswellBC 1777, the grievor was dismissed for allegedly harassing and bullying a fellow employee. The union argued that there was no cause for discipline since the grievor’s conduct was consistent with the “blue collar culture” of the workplace (a mine) and the conversations amounted to no more than “locker room talk”. The arbitrator rejected this rationale – finding that there is a basic expectation that employees will not be subjected to harassment and bullying, and that the employer had made a good faith effort to correct the workplace culture through training, corrective action and progressive discipline.
In ATU, Local 113 and Toronto Transit Commission, Re, 2018 CarswellOnt 12619, the arbitrator reinstated an employee after the employer dismissed her following its investigation of her harassment complaint. The grievor, a Toronto Transit Commission (“TTC”) bus driver, complained that she was sexually harassed by a supervisor. The TTC’s investigation determined that the grievor and the supervisor had engaged in “consensual sexual behaviour” during work hours on a TTC vehicle, which the grievor denied. TTC dismissed the grievor for her alleged “inappropriate and unprofessional conduct”, which TTC claimed contravened the Company’s respect and dignity policy. The arbitrator considered whether the grievor was unjustly dismissed for making a false or bad faith complaint – the issue turned on whether the grievor consented to or willingly co-operated with the supervisor’s sexual overtures. The arbitrator accepted the grievor’s evidence, and reinstated her with seniority and compensation for lost wages and benefits.
Given the length of time that it might take for a fulsome investigation to be completed, employers must consider appropriate interim measures to put in place before the matter is resolved.
In Ryerson University and RFA, Re, 2018 CarswellOnt 18961, the arbitrator considered the appropriateness of the interim measures imposed on the alleged harasser while a sexual assault investigation was ongoing. The University had subjected the grievor, a professor, to the following measures: he was prohibited from contacting or communicating with the complainant, he was banned from attending Ryerson campus, and he was prohibited from having any unsupervised in-person contact with students at the University on or off campus. In this case, the professor had allegedly entered into the private residence of a student and engaged in behaviour that included unwanted physical contact. The association argued that the interim measures were overly restrictive and set a low bar for their imposition: although the grievor was not suspended, the interim measures had the effect of a suspension. The arbitrator noted that the question is “whether a fair minded and well-informed public would have lost confidence in the Employer if the disputed Interim Measures had not been imposed.” Given the serious nature of the allegations, the arbitrator found that the interim measures were justified in the circumstances.
In Canada, all employers are subject to human rights legislation that prohibits discrimination in employment based on several enumerated grounds. Also, in certain jurisdictions, sexual harassment in the workplace is specifically prohibited under applicable legislation. For example, section 7(2) of Ontario’s Human Rights Code provides:
“Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employer.”
In Ontario, the definition of “workplace harassment” under the Occupational Health and Safety Act (“OHSA”) is more descriptive and encompasses: (a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or (b) workplace sexual harassment. The “workplace” means more than just the physical workplace, and can include employer-sponsored events (on or offsite) and social media platforms (even if accessed outside working hours).
In 2016, the OHSA was amended under Bill 132, Sexual Violence and Harassment Action Plan Act, to expand employers’ obligations aimed at combatting sexual harassment and violence in the workplace and protecting employees from such conduct. At present, employers must:
- Prepare written workplace harassment and violence policies, which employers must post at a conspicuous place in the workplace. These policies must be reviewed by the employer at least annually;
- Develop and maintain a program to implement the workplace violence policy, which must include measures and procedures to control identified risks and for workers to report incidents, and set out how the employer will investigate and deal with incidents or complaints; and
- Develop and maintain a program to implement the workplace harassment policy, which must include measures and procedures for workers to report complaints or incidents, set out how incidents or complaints will be investigated and dealt with, and how the implicated parties will be informed of the results of the investigation. The employer must review their program at least annually.
- Many thanks to Alissa Scarcello for her assistance with this article.