…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.
PIPSC v. CEP, Local 3011 (Haniff and Weatherill) 2013 ONSC 2725 (OSCJ) (para. 26)
It is not often that a labour arbitration award gets set aside these days in Canada. However, recently, in a decision that we think will become a precedent decision for workplace sexual harassment and assault discipline an award was set aside. To learn more about what happened in this case keep reading.
Mr. Haniff, a mail room clerk, was terminated for sexually harassing a contract employee. The allegations?
- In June 2012, a female cleaner reported that Mr. Haniff tried to kiss her while on an elevator. When she pushed him away, he grabbed her behind.
- The June incident was not the first time – the cleaner testified that she had repeatedly told Mr. Haniff to stop making advances over a four to five year period.
- When Mr. Haniff was interviewed by the employer, he did not deny the incident, but claimed the cleaner had consented to his behaviour and had done so in the past – the cleaner denied such consent.
- Mr. Haniff was put on administrative leave while the matter was investigated. He was discharged approximately a week later.
The arbitrator concluded that Mr. Haniff had committed acts of sexual harassment and sexual assault, but found that termination was not a “reasonable disciplinary response” based on similar arbitration decisions in this area. Mr. Haniff was reinstated with a lengthy suspension.
Why did the arbitrator reinstate?
Another cleaner was able to stop Mr. Haniff from sexually harassing her when she threatened him with violence – showing him her fist. That same other cleaner testified that the complainant was a “strong woman who could stand up for herself.” The complainant did not want Mr. Haniff fired.
Why did the Court find the arbitrator’s decision was unreasonable?
The court said that both considerations by the arbitrator were irrelevant and represented a “dangerous step backwards in the law surrounding the treatment of sexual misconduct in the workplace”.
The court commented that although reinstatement might occur “where the conduct falls on the less serious end of the continuum and the employee has demonstrated remorse for his behaviour,” the arbitrator’s finding that Mr. Haniff’s behaviour warranted reinstatement was unreasonable because.
- for approximately five of his six years of employment Mr. Haniff had been engaging in sexually harassing behaviour: “performing a ‘sexy dance,’ blowing kisses to the Complainant and others, and sometimes grabbing the Complainant’s buttocks” (which the court found to be sexual assault).
- Mr. Haniff was unable to understand that “no means no” as demonstrated by the June 2012 attempt to kiss the complainant in the elevator.
- The arbitrator was also aware that there was no remorse by Mr. Haniff and that he had insisted that the complainant consented even in the face of clear evidence to the contrary.
- A written apology from Mr. Haniff to the complainant showed a lack of remorse, trivializing the complaint to just her “perspective” that something negative had happened between them.
- Nowhere did Mr. Haniff indicate that he had learned from the experience or had gained insight into his behaviour.
High on the list of unreasonableness noted by the court was the arbitrator suggesting that the complainant had input as to whether Mr. Haniff should be terminated:
…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.
What does this mean for employers?
This decision highlights that disciplinary decisions must be made by the employer. Although reinstatement can occur for “sexual harassment”, this decision confirms that the key factor to consider in such cases is whether there is an appreciation by the harassing employee and, as a consequence, true remorse. Employees who say “no” should not have put an end to harassment or abuse. With a proper harassment policy, an employee who believes he or she is being harassed should be able to say “no” and, if “no” is not respected , then a complaint to the employer should follow and a thorough investigation and proper discipline. As Justice Sachs said : 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.