Labour arbitrator grants interim protection for complainant of workplace sexual harassment

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Since the onset of the #metoo movement, Canadian society has been paying attention to (and grappling with the consequences of) sexual harassment to a previously unprecedented degree. This increased focused is long overdue. That said, as more and more cases of alleged sexual harassment continue to work their way through different judicial processes, we are starting to see courts and administrative tribunals embrace new tools to help protect complainants through what can often seem a daunting process.

For instance, back in August 2018, we wrote about a then-new decision from the Ontario Superior Court of Justice: Render v. ThyssenKrupp Elevator, 2018 ONSC 3182. That case concerned an allegation of wrongful dismissal from a former employee who was alleged to have sexually harassed a female co-worker and was thereafter fired. What made the Render decision notable, however, was that the Court granted the female complainant of sexual harassment – who was not a party to the litigation itself –  a limited right to be heard and make submissions before the Court for the purposes of protecting “not only her credibility but also her integrity…”

Now in 2019, we have yet one more innovative measure taken to help protect (and perhaps thereby encourage) complainants of sexual harassment to make their voices heard.

The Rowe grievances

In the case of Sodexo Canada Ltd. (at NAV Canada Training and Conference Centre, Cornwall) v United Food and Commercial Workers Canada, Local 175, 2019 CanLII 59358 (ON LA) at issue were allegations of sexual harassment and solicitation raised by a unionized worker (Rowe) with respect to the conduct of her immediate supervisor. Following an internal investigation that determined the worker’s complaints were unsubstantiated, Rowe and her union grieved the issue and the matter proceeded to arbitration.

One of the first issues the arbitrator was called to address was whether the complainant/grievor should be scheduled to continue working directly with her alleged harasser pending the outcome of the arbitration. In particular, the union requested an interim order “that would preclude the Employer from scheduling [the Grievor] with [AV], under any circumstances, pending the final disposition of Ms. Rowe’s grievances”.

To address this issue, Arbitrator Bernhardt applied a two-part test:

1.       Whether there is an arguable case on the merits of the grievance; and

2.       Does the balance of harm or convenience favour granting the requested interim relief.

The first element of the test (a requirement for an “arguable case”) is a necessary legal protection. While eliminating sexual harassment in the workplace is important, it is generally acknowledged we cannot go about pursuing this goal in a manner that automatically presumes the guilt of any respondent. As such, the “arguable case” requirement serves to weed out frivolous, meritless or vexatious matters and ensure only legitimate allegations of sexual harassment form the basis of any order for interim relief.

The second element of the test (“harm or convenience”) is a legal balancing tool. It asks, in practical terms, that an arbitrator weigh the pros and the cons of the relief being requested.

In this case, it was not disputed between the parties that there was a meritorious allegation of sexual harassment. As such, Arbitrator Bernhardt focused her decision on the issue of “harm or convenience”.

In reaching her conclusion the requested interim order be granted, Arbitrator Bernhardt noted that the employer already had largely scheduled the grievor and her respondent-supervisor to work different shifts. Specifically, the Arbitrator reasoned:

The harm or inconvenience would not cause undue harm to the Employer and at most might engage minimal monetary costs which could be remedied at arbitration, should the grievances fail.  On balance, the potential harm to the Grievor should she be forced into contact with AV or, potentially subjected to any further behaviour similar to that alleged in the grievances, could jeopardize the Grievor’s health and safety…The allegations in the grievances contain potential violations of both the Code and OHSA; giving weight to the balance of harm faced by the Union and Grievor should the interim relief not be granted.

This decision for interim relief makes no determination regarding any wrongdoing on the part of AV or the Employer, and these measures only reflect that until such a determination is made, all parties are involved in a temporary accommodation. [emphasis added]

Lessons learned

As decisions like that in Render and Rowe make clear, our justice system is aware of the challenges faced by sexual harassment complainants and how pursuing such allegations may come with deleterious effects. While judges, arbitrators and other adjudicators are required not to pre-judge any case, there is still room for creative counsel to utilize tools to ensure sexual harassment complainants can fairly make their case from start to finish.

This article was originally published on July 15, 2019 on First Reference Talks.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in the National Capital Region and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.

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