Sexual harassment occurs on a spectrum of misconduct, and the termination of an employee who commits an act which falls on the lower end of the spectrum is not warranted. Instead, more appropriate forms of discipline short of termination should be applied.
The recent Ontario Labour Arbitration decision of Gord Luborsky on March 10, 2008 in Kitchener (City) v. Kitchener Professional Fire Fighters Assn. (W. Grievance)  O.L.A.A. No. 15 (“Kitchener”), held that acts of sexual harassment committed by an employee which fall on the lower end of the “spectrum of misconduct” do not warrant the employee’s termination. Instead, lesser forms of discipline should be implemented to punish such inappropriate acts.
In Kitchener, the employee was the Captain of a firefighter Platoon and allegedly committed four incidents of sexual harassment towards a female co-worker in his Platoon, three of which were formally reported. The first incident occurred in the kitchen of the fire hall where the employee started to massage the co-worker’s shoulders and said “I am here for lunch to get to know the people that I am going to start working with.” This incident was never formally reported because the co-worker claimed that she was new and wanted to “fit in.”
The remaining three incidents all transpired during one shift and only a matter of hours apart. The first occurred when the co-worker was startled by the employee and the employee grabbed the co-worker’s arm while saying to another firefighter “we better take her pulse.” The co-worker told the employee, “I’m fine don’t touch me”. Following this was an incident during a training session where the co-worker had “her backside in the air” and the employee exclaimed in the presence of other firefighters that it “…was a perfect Kodak moment.” The last incident involved the employee inappropriately pressing his body against the co-worker from behind. At the end of the shift, the co-worker made a formal complaint about the employee in relation to these three incidents.
An internal investigation took place, which led to the employee being demoted, switched to another Platoon, and being required to attend counselling and sensitivity training. In addition to this, a second investigation on the matter was conducted by the City’s Human Resources Department, who determined that the three incidents were acts of sexual harassment. The employee was subsequently terminated. The Firefighters’ Association claimed that no sexual harassment occurred, or alternatively, was of such a low level that the employee’s termination was not warranted and that the employee had already been disciplined for his conduct.
In rendering a decision, Arbitrator Luborsky stated that sexual harassment occurs on a “spectrum of misconduct” and that the events which were formally reported were on the “low to mid-range of the spectrum between the most egregious type of sexual harassment amounting to a form of sexual assault and low level crude and isolated remarks of a sexual nature.” Due to this level of the incidents, as well as the governing collective agreement, Arbitrator Luborsky concluded that the initial discipline given to the employee was “just and reasonable” and reinstated the employee. Additionally, Arbitrator Luborsky further disciplined the employee by giving him a suspension of twenty shifts without pay.
This decision signifies that the termination of an employee for an act of sexual harassment is not necessarily the correct response in every situation. Although sexual harassment should be avoided in the workplace and every occurrence addressed by the employer, the type and amount of discipline that should be invoked will be determinative upon the degree of misconduct that the action entails.