College Demonstrates Commitment to Combat Sexual Violence

In a recent arbitration decision, a public College successfully argued that Sexual Violence in the workplace is conduct that is of such a serious nature that termination is justified in the absence of serious mitigating circumstances.  

Colleges have always backed their commitment to harassment and violence-free workplaces with strong policies, procedures, and training for employees and students. See the end of this case study for a few examples. In this case, the College’s policies were put to the test when a unionized support-staff employee was terminated by the College for sexual assault.  

The College received a complaint from an employee (the “Complainant”) that they had been a victim of sexual assault in the workplace. The Complainant stood on a table fixing a grate overhead when they alleged another employee (the “Grievor”) reached up, grabbed the buttocks and genitals, and then squeezed the genitals, of the Complainant. This was done in front of another staff member who witnessed the event. The College completed an investigation under its sexual and gender-based violence policies and concluded that the misconduct had occurred. The College then terminated the Grievor for cause.  

The Grievor filed a grievance through their union, the Ontario Public Service Employees Union (OPSEU) who denied that the Grievor had committed any wrongdoing. OPSEU  argued that the Complainant was untrustworthy and asked that the Grievor be reinstated with no discipline, or alternatively, with a lesser penalty than termination. The Arbitrator rejected OPSEU’s position. 

1. Was the Grievor a credible witness, or were the Complainant and Witness credible? 

OPSEU’s position at arbitration was that the Complainant – the victim of the sexual assault – was “untrustworthy and unreliable.” This is remarkable as the Complainant was also a member of the same bargaining unit, and yet OPSEU challenged their own member’s integrity. The Complainant was emotional during testimony but consistent. Although not without flaws, the Arbitrator concluded that the Complainant’s recollection was to be preferred over the Grievor’s. By contrast, the Arbitrator found central and peripheral inconsistencies throughout the Grievor’s testimony and determined the Grievor was not truthful. The Arbitrator also found that a Witness to the event delivered their testimony “in a composed and forthright manner” and was consistent throughout. The Witness’ testimony supported the Complainant’s version of events.  

2. Did the Grievor commit a sexual assault? 

OPSEU’s position at arbitration was that the physical act of touching and squeezing another person’s genitals was only “sexual harassment, not a sexual assault” and that at most, the “incident was a single brief touch with the Grievor’s hands briefly touching the Complainant’s hip or hip area.” OPSEU also argued that the conduct did not meet the criminal standard of sexual assault and therefore the Grievor’s conduct could not be found to be a sexual assault at all. The College argued that what occurred was “a serious sexual assault” that was unwelcome contact that violated both the College’s Sexual Violence and the Workplace Harassment, Discrimination and Bullying policies.  

The Arbitrator concluded that, given the more credible and reliable testimony of the Complainant and Witness, the assault occurred as alleged by the College. The Arbitrator further found the College did not need to satisfy the requirements of the Criminal Code definition of sexual assault. It only needed to demonstrate that workplace misconduct occurred that warranted discharge. He found the Grievor’s actions to be “objectively serious and egregious misconduct” justifying termination of employment.  

3. If the Grievor committed sexual assault, was their long service and discipline-free record sufficient to mitigate the act of the assault and warrant the substitution of a lesser penalty?

Finally, OPSEU argued that if it was determined that the Grievor had committed a sexual assault, the Grievor’s long tenure of employment and discipline-free record meant that a lesser penalty than termination should be substituted by the Arbitrator. The College acknowledged the service and discipline-free record but noted that the Grievor accepted no responsibility, denied any wrongdoing, and showed no remorse for their actions. The Arbitrator agreed with the College, noting that several factors needed to be considered “including the conduct of the Grievor, the length of service, the Grievor’s previous discipline, an acknowledgment of wrongdoing, and evidence of remorse and/or an apology.” The Arbitrator found that this long-term Grievor had accumulated a significant level of “trust equity” but this was negated by engaging in sexual violence and then failing to acknowledge the misconduct and failing to apologize.  

The Arbitrator also addressed the jurisprudence relied upon by OPSEU, where employees who engaged in sexual harassment were reinstated to their employment. The Arbitrator expressed doubts that the first case, decided in 1990, would have the same outcome today. Furthermore, the touching in that case was not “overt molestation” while the Grievor’s conduct in this case “was sexually overt and sexually offensive.” In the second case, the Grievor expressed an admission of guilt and apology, which was absent from the Grievor.  

The Grievor’s termination was upheld, and the grievance was dismissed. This case is important in that it demonstrates the seriousness with which Colleges handle and investigate sexual harassment claims. Additionally, it may be indicative of a change in how arbitrators and other adjudicators are determining matters of sexual harassment and sexual assault in the workplace. Note especially how the Arbitrator suggested that a case of sexual harassment in 1990 may well have been treated differently today and using that proposition as part of his justification for rejecting the Union’s jurisprudence.  

Colleges are committed to eradicating sexual harassment and sexual violence on their campuses. Every College in Ontario has Workplace Sexual Harassment and Workplace Violence policies and implemented programs to combat sexual harassment and violence in the workplace For example, see Mohawk College’s policy here: Respectful Workplace Policy. All Ontario Colleges also prepare Sexual Violence policies to protect students in their institutions and annually report on supports, services, and accommodations; awareness and education programs and initiatives; reported incidents and complaints; and on the implementation and effectiveness of their policies. For example, see George Brown’s Annual Reporting on Sexual Harassment and Sexual Violence, which includes statistics on workplace sexual harassment and violence; and learn about consent from Niagara College at Consent is Key.