Human Rights Office

Human Rights Office
Human Rights Office

The Corporation of the City of Burlington and Canadian Union of Public Employees Local 2723, 2017 CanLII 31797

Summary

This case is a labour arbitration between the City of Burlington and CUPE Local 2723, who is representing the grievor, Susan Catherwood.

The Corporation of the City of Burlington has a ‘zero tolerance’ policy in place for sexual harassment in the workplace.

The allegations that were brought forward in 2015 and 2016 which gave rise to a workplace investigation, pursuant to the City of Burlington’s Respect in the Workplace Policy, and precipitated Susan Catherwood being terminated from her job are as follows:

  1. Ms. Catherwood was dancing, in a sexually suggestive manner, in front of Mr. Alfaro;
  2. Ms. Catherwood ran her index finger along the shaved head of Mr. Alfaro from front to back, licking her finger and replying “yummy” afterward; and
  3. Ms. Catherwood using the word “erection” and making a hand gesture indicating an erect penis.

At the time of termination, Ms. Catherwood had a clear disciplinary record, had received training with respect to harassment in the workplace and was familiar with the policies concerning harassment, having herself lodged complaints of sexual harassment against two of her

Questions to be Determined and Findings

  1. Did the three incidents occur as reported?
    1. Dancing incident (NO)
    2. Touching Mr. Alfaro’s head (YES)
    3. Making an obscene gesture (NO)
  2. Was the City reasonable in terminating Ms. Catherwood’s employment? (NO)

Analysis

The Collective Agreement had no “just cause” article for discipline or discharge of an employee. However, all employees, unionized and otherwise, signed an employment contract which clearly outlined “just cause” for discipline or discharge.

The employer has in place a robust policy concerning sexual harassment in the workplace and drew upon the points within the policy that specify “sexually suggestive comments or gestures, unwelcome remarks, and physical contact of a sexual nature”.

With respect to the dancing incident, the Arbitrator found that Mr. Alfaro and Mr. Lichey’s versions of events concerning the dancing changed over time and what was first discussed as something Ms. Catherwood typically participated in on Fridays was reframed as sexual in nature.  However, in both versions, it was noted that the dancing was already occurring prior to Mr. Alfaro entering the room. Therefore, the Arbitrator found:

On the balance of probabilities that Ms. Catherwood’s dancing was somewhat inappropriate for the workplace, but did not constitute sexual harassment.

Second, the touching of Mr. Alfaro’s head was not disputed that it occurred. However, Ms. Catherwood denies that she licked her finger and replied yummy.  The arbitrator concluded:

Ms. Catherwood said the entire incident was intended as a joke.  I accept that evidence. In my view, even if she said “yummy”, Ms. Catherwood said it with no sexual connotations, as there was nothing else of a sexual nature about any of the surrounding circumstances.

I find the head-touching incident was an inappropriate joke intended to tease Mr. Alfaro, but has not in the circumstances been established as sexual harassment.

With respect to the obscene gesture, the Arbitrator found that there was no evidence in the report from the investigation that Ms. Catherwood admitted to making an obscene gesture in the workplace and therefore it was dismissed.

The Arbitrator in this case suggested, when an individual outright denies allegations of sexual harassment, it is pertinent that an employer ensure that a workplace investigation occur and that on a balance of probability that the complainant is truthful and the allegations are substantiated.  In this case, the Arbitrator did not find that to be so. Stating further that,

It is important that in investigating and acting on a complaint of sexual harassment that is denied by the alleged perpetrator, an employer must take care to assess whether the complainant if bringing the complaint forward for improper reasons.

In this case, the Arbitrator concluded that Mr. Alfaro was bringing forward allegations against Ms. Catherwood as reprisal for her bringing forward complaints against two of his colleagues and friends.

Therefore the Arbitrator concluded that although some of Ms. Catherwood’s actions were inappropriate for the workplace the termination of her employment was without just cause. The Arbitrator also rejected the employer’s assertion that the employment relationship cannot be reestablished.

Remedy

Ms. Catherwood be reinstated.

Ms. Catherwood have a two-day suspension on her record.

Ms. Catherwood is to be compensated for lost wages.