Matters of sexually inappropriate conduct at work are serious. When someone is found to have acted in such a manner, either physically or verbally, a natural consequence of that behaviour is termination. At HMC Lawyers we represent employees who have been victims of actions contrary to Alberta’s Employment Standards Code or Human Rights Act. Just this summer, a grievance was heard between an employer (Alberta Health Services) and the Alberta Union of Provincial Employees, representing a member who had been fired for having touched the buttocks and torso of an employee and later denied it. While we don’t typically discuss matters involving unionized employees, this decision makes an interesting case study.
Employee inappropriately touches colleague
The matter in dispute involved an interaction between two employees referred to in the decision as “JJ” and “KV,” which is how we will refer to the parties. The grievor (terminated employee) worked as a Health Care Aid at a hospital, and KV is a registered nurse. At the time of the incident, they both worked in the same unit, which contained a u-shaped nursing station.
On October 8, 2020, JJ’s employment was terminated for inappropriate sexual contact with KV. The notice of termination stated that JJ was found to have used “the palms of your hands to touch and run the front and back side of (KV’s) torso, including touching her buttocks, without this staff member’s consent or understanding of your intentions and that you were dishonest in your denial that this interaction occurred.” JJ filed a grievance stating that she was terminated without just cause.
The parties could not agree on the facts leading up to the termination, and several witnesses were called to help determine what had happened. KV’s evidence was that on the day of the incident, she was there to attend a meeting and not working. She was in the nursing unit when she stated that she had lost her ID badge. At this point, KV said JJ approached her and started to rub her hands up and down her torso, including her buttocks. She told the employer she was shocked by the behaviour and left the area as soon as possible. KV said she did not know JJ and did not recall working with her prior to the incident.
A workplace investigation followed, and JJ initially denied having touched KV as described. JJ did not provide an alternate explanation or express remorse. However, after talking to several witnesses, the employer determined JJ did in fact do what she was alleged to have done.
JJ testified that she was aware of the employer’s Respectful Workplaces and the Prevention of Harassment and Violence Policy, which speaks to her alleged conduct. At the hearing JJ remained steadfast in her denial of what happened.
Union argues employee should not have been fired
The union representing JJ took the position that she should not have been terminated and that several factors support their position. They stated that JJ had no prior discipline on record before the incident, and the employer had not ever expressed issues or concerns with her performance or conduct in the past. They also recalled her initial denial of the incident and that early on KV had said that her breasts were also touched. The union said it would have been natural for JJ to deny that allegation, which was ultimately found to have not occurred. Finally, the union also stated that if the interaction was found to have occurred while touching anyone without consent was inappropriate, the interaction in question was benign, meaning not harmful. The union said the employer should have turned to a less serious form of discipline. Meanwhile, the employer argued that as a matter of unwanted touching without consent which left KV feeling violated, JJ’s termination was justified. The Board found that JJ’s recollection of the events and her testimony concerning it were inconsistent. The evidence the employer’s witnesses provided was credible and led them to find that the incident occurred.
In turning to whether or not JJ’s actions provided just cause for termination, the Board stated that a violation of the employer’s policy towards this type of conduct does give just cause for discipline. However, in asking whether termination is the appropriate type of discipline, the Board focused on the nature of what occurred, finding that it was not sexual. They believed that JJ was trying to help KV find her badge, nothing that even KV said she did not feel the touching was sexual. The Board was also sympathetic to JJ’s denial of the events because JJ understood she was being accused of sexual harassment. The decision stated that this would likely have been shocking. The Board also took note of JJ’s employment history and lack of disciplinary conduct. Ultimately, the Board accepted that JJ’s conduct was not premeditated, was spontaneous, and was not sexual. Because of this, they found that her termination was excessive but worthy of discipline. The Board substituted the termination with a 21-day suspension without pay.
The employment law team at HMC Lawyers can help you with employment law advice, including wrongful termination
The employment law team at HMC Lawyers has over 130 years of cumulative experience helping employees and employers navigate a wide range of employment law matters, including those related to conduct in the workplace and issues concerning wrongful dismissal. We regularly help clients resolve matters, including through the use of mediation and other methods of alternative dispute resolution, but are ready to represent clients in litigation where necessary. If you have questions about your rights in the workplace or discipline that you have been subject to, please don’t hesitate to reach us online or by phone at 1-800-480-3534. We look forward to talking to you.