When addressing workplace harassment, the power of a thorough workplace investigation can be instrumental in justifying termination of employment for cause. The recent arbitration decision of Health Sciences Association of Alberta v Alberta Health Services [Health Sciences Association] illustrates how following a transparent and good faith investigation process that balances employee rights and adherence to employer policies can enable an employer to terminate an employee for cause for objectively unreasonable conduct.
Background
The employer conducted a workplace investigation in response to a respectful workplace complainant where the complainant, a respiratory therapist, alleged that the respondent employee, a fellow respiratory therapist, engaged in workplace harassment.
The complainant alleged that the respondent repeatedly made a series of derogatory comments, including racial nicknames related to his Asian background, jokes about his language abilities, and comments that male Asians have small genitalia. The respondent’s conduct further escalated to a physically aggressive incident, where the respondent pushed a chair towards the complainant making a loud sound and startling the complainant.
The investigation found that the respondent engaged in workplace harassment, by making both racist and sexually harassing comments to the complainant. The employer terminated the respondent’s employment for cause and the respondent subsequently grieved the termination.
Decision
The arbitration panel ultimately agreed with the investigation’s findings, confirming that the respondent made demeaning and racially charged jokes to the complainant with a sexual innuendo, constituting both workplace harassment and sexual harassment. As such, the conduct violated employer policies and modern workplace norms.
Despite mitigating factors, including the respondent’s lengthy service of 15 years and the lack of an active discipline record, the respondent’s conduct was so far removed from acceptable workplace conduct that it undermined the employment relationship, and the termination was found not to be excessive. The respondent also received training on employer policies regarding harassment and violence twice, and the employer had made the policies readily available, along with making statements against racism during the relevant period. These factors evinced that the respondent knew or ought to have known her conduct was objectively contrary to the employer’s efforts to promote a respectful work environment.
Along with the objective seriousness of the conduct, the respondent’s lack of insight regarding the gravity of her daily, targeted, and demeaning comments was an aggravating factor supporting the termination. While the respondent admitted to committing the conduct, she minimized the severity of her actions and the impact that it had on the complainant. Even after the complainant began to withdraw from interactions with the respondent, she continued to escalate her behaviour, exhibiting a refusal to acknowledge the scope of her actions. The respondent insisted that the jokes were not of a sexual nature and minimized the severity of her jokes, despite witness evidence corroborating the complainant’s description of the nature and impact of her comments. Consequently, the arbitration panel deemed the respondent had low rehabilitative potential and found that the termination was not excessive in these circumstances.
Takeaways for Employers
While the threshold to terminate an employee for cause is an increasingly high bar to meet, Health Sciences Association showcases the merits of conducting a proper workplace investigation to establish whether workplace harassment has occurred. Health Sciences Association further sheds light that the standard for conducting workplace investigations is not perfection. Rather, an employer should attempt to follow a good faith process, where the respondent is able to know the nature of the allegations made against them and have the opportunity to respond to them. Employers should also attempt to balance the rights of employees while upholding the employer’s policies and ensuring a safe work environment while gathering information.
While establishing workplace policies is foundational for setting a tolerant workplace culture, equal importance must be given to regularly training employees on the policies and procedures to ensure that employees understand the policies.
Employers should be aware that regardless of the length of employment or the existence of a clean disciplinary record, conduct that is objectively flagrant to workplace norms and standards can result in termination for cause, where the employer has properly investigated and taken a proactive approach to educating employees on employer policies and procedures.
Given Health Sciences Association is an arbitration decision from Alberta, extra-provincial employers including employers in Ontario should note that the legal relevance of this case may be limited in their jurisdiction. Despite its potential lack of legal persuasiveness however, the general principles set out in Health Sciences Association can be relied on to demonstrate that a properly conducted workplace investigation and updated workplace policies can assist an employer in distinguishing objectionable conduct that meets the legislative definition of harassment from generally inappropriate workplace conduct, and assist the employer in defending disciplinary action.
This blog is provided as an information service and summary of workplace legal issues.
This information is not intended as legal advice.
