Legal News

In the hot seat: Firefighter sexual misconduct in the workplace

A recent review decision of British Columbia Labour Relations Board has highlighted the importance for employers of conducting a full investigation into misconduct before making a termination decision.

In Vernon (City) (Re), BCLRB No. B133/2019, the Board upheld an arbitration panel’s decision to reinstate a fire captain who was dismissed for misconduct and dishonesty. The fire captain had engaged in sexual relations with a colleague at the workplace and was “evasive and not forthright” during the investigation.

At the arbitration hearing, the three-member Panel heard that the two grievors, a fire captain and a dispatcher, had engaged in a “brief episode of consensual sexual activity” in the fire chief’s office.  The episode was caught by video surveillance that had been set up in the office for unrelated reasons. The following day, the grievors were interviewed regarding their conduct. The captain was dishonest and deflected in response to the allegations. The next day, the Employer terminated the employment of both grievors.

The Panel concluded that the Employer “did not take time to become fully informed and assess the situation before deciding the appropriate response”. The Panel noted that the grievors had offered to “tell all” on the day following the initial interview, but they were denied an opportunity to come clean. The Panel stated that “perhaps the employer did not want to hear what they might say and risk changing the narrative it had constructed based on 88 seconds of video footage and an investigation the employer now acknowledges had ‘shortcomings’. Ultimately, the Panel determined that the discipline imposed was excessive in the circumstances. The Panel ordered that both grievors be reinstated, substituting termination for suspension and placing additional conditions on the fire captain.

The Employer applied to have the Board review the Panel’s decision to reinstate the fire captain. The Employer argued that the Panel had not provided a reasoned basis for concluding that the employment relationship could be restored in light of the nature of the misconduct and dishonesty. The Employer also argued that the Panel had failed to make a credibility determination between the grievors and a witness.

The Board confirmed that a review under section 99 of the Labour Relations Code is not a full-fledged avenue of appeal and the Board will not interfere with decisions “merely because it believes it might have reached a different conclusion”.  It determined that the Panel had implicitly addressed the issue of the viability of the employment relationship after considering the grievor’s dishonesty. It also concluded that the Panel was entitled to assign the weight it did to the witness’s testimony. The Board upheld the decision of the Panel.

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