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No Just Cause Despite Touching Bum and Torso and Not Admitting It
Alberta Union of Provincial Employees v Alberta Union of Provincial Employees, 2022 CanLII 100939 (AB GAA) (Oct 31, 2022) is a new case where a health care aide in a unionized workplace was determined to have touched a co-worker without consent on her buttocks and torso, then denied it, but just cause for termination was not found for several mitigating reasons, including that the touching was not “sexual” in nature.
This case is important because there are relatively few cases where inappropriate touching and then denying it would not constitute just cause for termination of employment.
Note: I think this case may have been indexed incorrectly on CanLii and the style of cause should read AUPE v AHS.
The following are the pertinent facts found by the Arbitration Panel:
- The grievor employee “JJ” was a female health care aide at the Royal Alexandra Hospital
- KV was a female registered nurse at the same hospital
- While at work, JJ touched the buttocks and torso of KV without consent. According to KV, KV had lost her ID badge and JJ came up and rubbed up and down on her buttocks and torso, apparently looking for the badge
- KV was upset about it, and complained
- JJ was suspended pending a workplace investigation
- During the workplace investigation, JJ denied having touched KV on the buttocks and torso
- However, there were several witnesses who confirmed it did happen
- The Arbitrator found that it did happen, but JJ did not admit it
- JJ had no discipline history, and it was an isolated incident that was not pre-meditated
- The employer had a sexual harassment policy which JJ was aware of
- JJ’s employment was terminated for inappropriate sexual contact with a co-worker, purportedly for cause
Analysis / Conclusion
The Majority of the Arbitration Panel found that the inappropriate touching of a co-worker without consent was cause for some discipline, and went on to further consider whether it was just cause for termination of employment.
The employer characterized the touching as sexual harassment. If it were found to be sexual harassment, that would be very serious. However, the Panel found that the touching was not sexual in nature: JJ was trying to help KV find her badge, and KV did not identify the contact as sexual in her evidence.
The Majority of the Panel found that non-consensual touching of a co-worker was still very serious, however, and had to consider whether JJ’s failure to be forthcoming about her conduct during the investigation pushed her misconduct into meeting the standard for just cause. The Panel found that in the circumstances of this case and the context of JJ’s failure to admit what she had done, the failure to admit was not very serious:
187. Having reviewed the investigation notes and the evidence of the witnesses, the failure of the Grievor to be forthcoming during the investigation itself was more evasive than deliberately misleading. She was confronted with serious allegations, however understood that it may be a misunderstanding which her supervisor advised her could be cleared up. While she was suspended which indicated the serious nature of the situation, because of COVID her interviews were conducted by phone while she was driving to her other job. This would not necessarily send the message that the investigation was being taken as seriously as one would expect. This may well have added to the Grievor’s misunderstanding. We can accept that in light of these circumstances there should be some consideration for the context of her failure to be forthcoming about what happened. This would incline the Board to consider that the employment relationship is not irrevocably broken, and reinstatement is appropriate.
In the result, the Panel found that the employer did not have just cause to terminate the employment of JJ. The Panel exercised its discretion to reinstate JJ to her employment and substitute the termination of employment for a 21 day suspension with no compensation for lost time.
The result in this case is interesting, but a bit surprising to me honestly. Non-consensual touching on the buttocks and torso of a co-worker would often qualify as cause for dismissal on its own. JJ then did not admit what she had done. If she had, that would usually be considered a factor mitigating the seriousness of the misconduct; but she did not. In many cases, this would be considered dishonesty and would push this from serious misconduct into just cause.
The Panel’s reasoning suggests that, because JJ may not have realized how serious the potential consequences of her actions were, she was less blameworthy for failing to admit to the investigators what she had done. I have some difficulty believing JJ was unaware that the allegations were serious, given that she was on suspension during the investigation. However, even given that it was found as a fact that she may not have realized how serious it was, I am still not sure I understand why this makes her dishonesty less blameworthy.
In any event, it’s a very academically interesting case.
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