Air Canada has lost its bid to defer a grievance involving a worker who was sexually harassed by a pilot. The incident took place in 2018 on a layover in Tel Aviv.
“There is no dispute that harassment occurred,” said arbitrator Michelle Flaherty in an interim ruling. “The main issue in the grievance is whether the Company subsequently took appropriate steps to ensure a harassment-free workplace for the Grievor.”
Background
The woman was sexually harassed on June 28, 2018. A few weeks later, she began a period of medical leave. She filed a complaint with Air Canada on April 4, 2019.
On June 28, 2019, Air Canada told her it had investigated her complaint and found it to be true. Discussions began about her returning to work.
She returned to work briefly in August 2019 but resumed a medical leave in November 2019. She has been off work, and without income, since 2019.
Request for deferral
Air Canada asked for the grievance to be deferred because the woman filed a workers’ compensation claim with the Commission des normes et de l’équité et de la santé et sécurité au travail (CNESST) in Quebec.
That claim alleges she suffered a workplace injury in connection with the sexual harassment, which she says was made worse when she was unable to return work safely. It also alleges Air Canada failed to take appropriate steps to ensure a safe and harassment-free workplace.
The CNESST dismissed the claim as untimely, but that ruling has been appealed — with a hearing scheduled for July 31, 2023.
Air Canada argued the grievance should be deferred until that ruling comes down since the workers’ comp complaint and the grievance overlap. It also noted that concurrent proceedings could result in inconsistent decisions and findings of fact.
The Canadian Union of Public Employee (CUPE), Air Canada component, took a different stance. It said a deferral would be highly prejudicial to the grievor, particularly at this late stage. It said the proceedings began in March 2022 and, though Air Canada was aware of the CNESST filing, it didn’t raise the prospect of deferral until May 2023.
The union argued any overlap in remedies could be addressed, if necessary, by setting off any payments that have been made.
The ruling
The arbitrator sided with the union. It noted that the grievance raised “broader issues, including the extent of the ongoing obligation to provide a harassment-free workplace and possible compensation under human rights legislation.”
Those human rights issues were not before the workers’ compensation appeal, nor where they within its jurisdiction, the arbitrator said.
“I find that it would be inappropriate to defer this grievance arbitration in the face of ongoing human rights issues, where the Grievor is actively seeking to return to work. The fact that the arbitration is already in progress further supports this conclusion,” said the arbitrator.
The request to defer was denied.
HR Law Canada will continue to track this case and report on the ruling should it become available.
For more information, see Canadian Union of Public Employees, Air Canada Component v Air Canada, 2023 CanLII 44161 (CA LA)
