In a recent decision, Lantic Inc. and Public and Private Workers of Canada, Local 8, 2025 (Matthews) (“Lantic“), Arbitrator Brett Matthews dismissed a grievance and upheld the termination of an employee who engaged in sexual harassment during a labour dispute.
Background
The case involved the termination of a lead hand who had worked for Lantic Inc. since 2008. The employee was terminated for two incidents which occurred during a prolonged strike: harassing a truck driver crossing a picket line and sexually harassing a security guard.
The Security Guard Incident involved the grievor approaching a 20-year-old female security guard who was inside the employer’s office building. Using a megaphone, the grievor made comments to her in Punjabi, telling her she was “really good looking” and repeatedly demanding she smile for him. The grievor had planned this interaction, asking a coworker to film it so “there would be a little bit of evidence.” After the incident, the grievor encouraged another employee to also target the same security guard, again filming the interaction. The grievor later admitted they were “playing a game at [the security guard’s] expense.”
The security guard testified that the incident left her feeling embarrassed and sexually harassed, prompting her to file a police report because she didn’t feel safe.
Arbitrator’s Decision
Arbitrator Matthews found the grievor’s conduct constituted “egregious workplace misconduct.” He rejected characterizations of the behavior as merely “playful” or “flirtatious,” finding instead that the grievor’s intention was to “get a laugh from the rest of picketers present – predominantly, if not exclusively men – at the expense of [the security guard].” The arbitrator concluded that “the Grievor intended to, and did, demean and embarrass” her.
Citing Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, the arbitrator characterized the conduct as “demeaning, hurtful and a profound affront to [the security guard’s] dignity as an employee, a professional, and as a human being.” He concluded that such conduct “has no place in a modern workplace.”
The arbitrator rejected the union’s argument that the picket line context should be considered a mitigating factor, stating: “I find the Union has not established why, or how, being on strike or on a picket line might contribute to the Grievor’s decision to sexually harass a security guard.”
Despite the grievor’s apology letters, the arbitrator found his appreciation of the harm caused was “at best, superficial” and that he did not fully understand the gravity of his misconduct. This led the arbitrator to conclude there was a risk the grievor might engage in similar conduct if reinstated.
Key Takeaways
This decision provides several important reminders for employers:
- All forms of sexual harassment can warrant termination: Verbal harassment without physical contact can constitute just cause for termination when it demeans and humiliates the target.
- Intent matters: The arbitrator focused significantly on the grievor’s intent to embarrass and demean the security guard for the entertainment of others, finding this particularly objectionable.
- Context of a strike is not a mitigating factor: The arbitrator explicitly rejected the notion that heightened tensions during a strike should excuse or mitigate harassing behavior.
- Premeditation and repetition are aggravating factors: The planned and documented nature of the harassment, including filming it and encouraging others to participate, significantly factored into the decision.
- Genuine remorse is critical: The arbitrator found that while the grievor had apologized, his appreciation of the harm caused was superficial, suggesting he might reoffend if reinstated.
- Progressive discipline not required: The arbitrator confirmed that progressive discipline is not required in cases of harassment that demeans and humiliates, even without physical contact or explicit sexual propositions.
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