An arbitrator has upheld the dismissal of a senior shipping clerk at St. Lawrence College following allegations of sexual assault and subsequent dishonesty during an investigation.
The worker, JS, had been with the college’s Brockville, Ont., campus for about 20 years in a full-time role. Prior to that, she had been a contract employee with the college for about four years.
Background
JS, who had an unblemished record and positive performance reviews throughout her tenure, was terminated on Jan. 11, 2022. The college alleged her actions constituted sexual assault, violating several of its policies, including the Sexual Violence Policy, Workplace Harassment and Bullying Policy, and the Workplace Violence Policy.
The college also accused her of being dishonest during the investigation and failing to take responsibility for her actions.
Union’s defense and grievance
The Union representing JS, the Ontario Public Service Employees Union (OPSEU), Local 418, filed a grievance on Jan. 26, 2022, challenging the findings of the third-party investigation and defending her conduct. The Union denied the allegations and contested the college’s decision to terminate her employment.
Key witnesses and testimonies
The arbitration hearing involved testimonies from five key witnesses, including the Director of Facilities, former Sustainability Manager, and Associate Director of Workplace Relations, alongside the complainant and JS herself.
The testimonies revealed conflicting accounts of the events leading to her dismissal.
The incident in question occurred on Nov. 23, 2021, when JS was alleged to have inappropriately touched a colleague while assisting him off a desk. While she claimed her actions were non-sexual and aimed at helping her colleague, testimonies from the complainant and a corroborating witness suggested otherwise.
“The Complainant testified that at this time, the Grievor placed both her hands on the Complainant’s buttocks and then took one hand and reached through the Complainant’s legs and cupped and squeezed his genitals,” the arbitrator said.
A complaint was filed and and investigated by a third-party investigator.
Arbitration findings
The arbitrator preferred the evidence of the complainant and a witness over JS’. The inconsistencies in her testimony, particularly regarding her wearing a mask during the pandemic and the circumstances of the incident, were highlighted.
The ruling emphasized that JS’ denial of the actions and lack of remorse weakened her defense.
Despite her long service and previously unblemished record, JS’ actions were deemed a serious breach of conduct, leading to her dismissal. The arbitrator underscored the gravity of workplace sexual harassment and the need for accountability, even in cases involving long-standing employees.
Her failure to acknowledge wrongdoing and demonstrate remorse played a crucial role in the decision to uphold her dismissal.
Union sought suspension
The Union’s argument, referencing legal precedents, suggested a suspension rather than dismissal.
However, the arbitrator found these precedents not entirely applicable due to the nature of her misconduct and her failure to show remorse.
The arbitrator noted that it was “important and necessary” to determine if the conduct warranted discharge, especially consider JS was a senior employee with two decades’ tenure. It ruled that her conduct was “egregious.”
“This workplace misconduct, subject to any mitigating factors, warrants discharge,” it said. “The Grievor’s years of service and clean disciplinary record, although mitigating factors, are, in the face of a lack of acknowledgement and remorse, insufficient to warrant lesser discipline.”
The arbitration ruling dismissed the grievance, upholding the dismissal as a necessary response to the serious allegations and her conduct during the investigation.
For more information, see St. Lawrence College v Ontario Public Service Employees Union, Local 418, 2023 CanLII 108797 (ON LA)
