Calgary (City) v Amalgamated Transit Union, Local 583 (Sebua Grievance),  AGAA No. 48Written By: Leela Wright, Articling StudentThis case relates to the decision by the City of Calgary to terminate the employment of one of its transit operators for sexual harassment despite an otherwise spotless disciplinary record. On the facts, the Arbitrator found that the dismissal was not an excessive response to the conduct even when considering the mitigating factor of an otherwise clean record.The parties to this arbitration were Local 588 of the Amalgamated Transit Union (the “Union”)—the bargaining agent for the City of Calgary’s transit operations—and the City of Calgary. Arthur Sebua (the “Grievor”) and “AB” were both transit drivers for the City of Calgary.In July of 2018, the Grievor and AB were walking in the Transit Depot getting ready to board their buses for the day when the Grievor took AB’s hand, without asking, and held it for a period of time as they walked. The next day, AB was sitting in the driver’s seat of her bus wearing shorts as it was a warm day. The Grievor approached the open driver’s side window, made a comment about AB’s legs and reached in through the buses open window to stroke AB’s legs. The Grievor then pointed at AB’s lower body and asked her “are you shaving down there too?” AB understandably interpreted this as a sexual remark, asking if she shaved her vaginal area.AB was extremely uncomfortable with this series of events and reported the matter to her supervisor at the end of her shift. The City commenced an investigation and suspended the Grievor for the duration thereof. The City’s investigation concluded that the Grievor had violated its Respectful Workplace Policy in making inappropriate and unwelcome sexual advances towards AB and the City terminated the Grievor’s employment. The Union filed a grievance claiming the City did not have just cause to terminate the Grievor and the matter ultimately went to an Arbitration hearing.In making his ruling, the Arbitrator applied the framework set out in Wm Scott & Co (Re),  BCLRBD No 98,  1 Can LRBR 1 [“William Scott”]. This test includes three distinct questions:First, has the employee given just and reasonable cause for some form of discipline by the employer?If so, was the employer’s decision to dismiss the employee an excessive response in all the circumstance of the case?Finally, if the arbitrator does consider discharge excessive, what alternative measures should be substituted as just and equitable?In response to the first question, the Arbitrator found that while the hand holding did not rise to sexual harassment (though it did warrant discipline), both the stroking of AB’s legs and the commenting on AB’s shaving habits were sexual misconduct in the context of both the City’s Policies and when taking into account relevant precedent.The Arbitrator considered a number of issues before finding that the Grievor’s misconduct did warrant termination including:The very serious nature of the sexual harassment coupled with the inappropriate conduct of the previous day;The City’s Respectful Workplace Policy, which indicates that unwanted sexual touching and remarks about person’s bodies of a sexual nature constitute sexual harassment. The Grievor knew that unwanted touching was wrong and that a person could be terminated for sexual harassment;The City’s legal responsibility under OH&S legislation to protect employees from sexual harassment;The Grievor’s clean disciplinary record, but taken in the context of being a relatively short-term employee with just 4.5 years of service, the mitigating factor available to a long-term employee was not available to the Grievor;The fact that progressive discipline was not utilized;The significant impact termination had on the Grievor;The significant negative impact that the misconduct had on the complainant, AB;The consideration that all employees should be entitled to work in a workplace free of sexual harassment; andThe Grievor’s unwillingness to accept responsibility for his actions thereby undermining his rehabilitative potential.Because termination was not found to be an excessive response, the third element of the test was not considered.Key TakeawayThis decision serves to underline that certain forms of serious misconduct can warrant summary termination with little or no progressive discipline on the part of the employer. The analysis is contextual and highly factual and it may be the case going forward that any sexual misconduct will rise to such a level that the misconduct overwhelms any potential mitigating considerations.If you have any questions about this or other matters, please contact a member of our Labour & Employment practice group. Disclaimer: This article is to be used for educational and non-commercial purposes only. Parlee McLaws LLP does not intend for this article to be a source of legal advice. Please seek the advice of a lawyer before choosing to act on any of the information contained in this article.