Health Sciences Association of Alberta v Alberta Health Services, 2023 CanLii 37831 (ABGAA) (Nicholson Grievance) is a labour case where a female respiratory therapist’s employment was terminated for just cause by AHS for making unwanted comments of a sexual nature and referring inappropriately to the Asian heritage of a co-worker.
This case is interesting because there are not a large quantity of female on male sexual harassment cases, and because I think it would have been difficult for the HSAA union to predict whether AHS was likely to have just cause for termination prior to this hearing.
Facts
The following are the pertinent facts summarized by the grievance arbitration panel:
- The grievor Angel Nicholson was a respiratory therapist in Alberta Children’s Hospital in Calgary for about 15 years
- The grievor’s employment was terminated following a complaint against her by a co-worker (the “complainant”) and an investigation by AHS
- The complainant and the grievor worked on the same shifts for a period of about 6 weeks
- The complainant had a very small pen clipped to his lanyard. The grievor found this to be funny, and made racial comments and innuendo almost daily over a 6 week period that implied a comparison between the small pen to the size of the complainant’s genitalia size as an Asian man, often in front of others
- the complainant initially joked or said things like “that is not true for all Asians”, but became more withdrawn and went to gathering areas like the lunchroom less frequently as a result
- the grievor admitted at the hearing that she had made jokes about the size of the complainant’s pen, but denied that there was any sexual innuendo or comparison to genitalia
- the grievor had also made jokes about the complainant’s small lunchbox, again comparing it to the grievor’s genitalia size as an Asian man. The grievor admitted at the hearing to making jokes about the size of the lunchbox, but denied any sexual innuendo or comparison to genitalia
- the grievor referred to the complainant by the nickname “the Asian sensation”. She was the only one in the workplace that gave him this nickname. The grievance arbitration panel found that this was not sexual, but it was race based
- English is the second language of the complainant. The grievor referred to him as “ESL” regularly, including in front of colleagues and students at the Children’s Hospital. The grievor said “that is enough” on a few occasions in an attempt to get her to stop
- In the blood gas lab, the grievor pushed a chair towards the complainant which loudly bumped into the back of his chair. He got upset and confronted her. She left and sent an apology for the incident by text. The arbitration panel considered the pushing of the chair to be part of a pattern of harassment by the grievor towards the complainant
- The complainant then made a complaint to AHS. AHS investigated and terminated the grievor’s employment with cause.
Analysis / Conclusion
The arbitration panel had little difficulty concluding that there was misconduct by the grievor and that some discipline was warranted. They next went to the famous Wm Scott factors to consider whether just cause was too severe of a penalty in the unionized context.
In applying the Wm Scott factors, the arbitration panel noted the following facts to be the most significant considerations in this case:
[51] The aggravating factors here included the:
a. objective seriousness of the conduct;
b. impact on the complainant;
c. extent to which the Grievor’s conduct differed from the workplace culture;
d. seriousness of the conduct in relation to the Employer’s policies;
e. repeated and escalating nature of the conduct; and
f. Grievor’s lack of insight into the seriousness of her conduct.
[52] We acknowledge there were significant mitigating circumstances here, including that the Grievor:
g. was a long-term employee;
h. had no active discipline on her employment record at the time of her termination; and
i. did not receive prior warnings about this conduct.
The Arbitration Panel noted that the conduct by the grievor was objectively serious, and found that even if the conduct can be characterized as “microaggressions” it was unacceptable and wrong:
[63] […] Given the targeted, daily, racist, and sexual nature of the comments, it is unclear if they were a series of microaggressions or direct overt racism and sexual harassment. Even if they were microaggressions, they were unacceptable and wrong. Microaggressions can have a significant impact because of the cumulative effect of repeated targeting. The cumulative nature of the conduct is what made the circumstances here so severe.
One of the union’s arguments was that the grievor’s comments were similar to many other comments others had made in the workplace. The arbitrators rejected this “shop talk” argument in this case, noting that the grievor’s conduct was so far outside of what was acceptable that she did not need anyone to tell her it was wrong: they were inherently unwelcome comments.
The arbitrators found that the greivor’s refusal to admit that her jokes contained sexual innuendo, in the face of alot of witness evidence to the contrary, was a significant aggravating factor which made her misconduct even more serious.
The arbitrators acknowledged that the grievor did not have malicious intent, but considered that to be a neutral factor because they found she had intended conduct that was of a racist and harassing nature. The arbitrators also found the apology for the chair incident to be neutral because the grievor was only apologizing for one event and not the whole of her conduct.
Finally, the arbitrators determined that the “rehabilitative potential” if they were to order AHS to reinstate the grievor would be low, given her lack of accountability for what she had done.
In the result, the arbitrators found AHS had just cause for dismissal of the grievor and dismissed the grievance.
My Take
The result in this case seems obvious when looking at the facts found by the Arbitration Panel. However, the union’s argument was essentially that the grievor did not intend racism and sexual innuendo. If the arbitrators had found a lack of intent, it likely still would have been considered misconduct, but I doubt if it would have been considered just cause for dismissal of this long service employee with a clean disciplinary record and no warnings.
One interesting tidbit I wanted to point out was the Arbitration Panel’s reference to the seriousness of conduct, even if it were characterized as “microaggressions”. There are not many cases I am aware of where the seriousness of conduct that could fall into that category has been considered.
This case is a win for the complainant and harassment victims in general, but its also a win for employers.
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