In an interim ruling, Arbitrator Ian Anderson has denied a union motion to void the suspensions of two City of London, Ont., employees accused of sexual harassment, rejecting the argument that a delay in discipline caused prejudice to the workers.
The decision stems from grievances filed by the two workers, who received five-day suspensions in March 2023 after an investigation into their conduct.
The suspensions were imposed following allegations they made overtly sexual statements and gestures on June 15, 2022. The Canadian Union of Public Employees (CUPE) Local 107 sought to have the suspensions overturned on the basis of delay, citing the length of time between the alleged misconduct and the eventual disciplinary action.
Anderson, however, determined that the delay — about eight to nine months from the incident to the suspensions — was not sufficient to nullify the discipline. While he acknowledged that the delay was lengthy and that the City of London’s Respectful Workplace Policy generally requires investigations to be completed within three months, he found no evidence that the delay had caused material prejudice to the grievors.
“There is no material dispute as to the length of the delay,” Anderson wrote in his ruling. He noted that while the employer did not complete the investigation within the typical three-month window, the delay did not inherently void the suspensions.
The union’s case rested largely on the argument that the delay impaired the ability of the employees to recall details of what they described as routine “bullshitting” in the workplace. CUPE’s position was that casual, often crass banter was common on the job site, and that the pair might not have realized their comments were unwelcome.
However, Anderson was not persuaded. He concluded that while crude language may have been part of the workplace culture, the comments in question stood out as more significant. The testimony from witnesses, including supervisors and colleagues, suggested that the employees should have been aware their behaviour was problematic.
One of the key witnesses, a supervisor, testified that he was surprised by the nature of the remarks attributed to the two men, despite acknowledging that foul language was not uncommon in their work environment. “To the extent of what was said, yes,” the supervisor said when asked if the comments surprised him. “We work in construction, there’s going to be f-bombs dropped. That’s just the culture. But some of the stuff that was said surprised me, yes.”
Another witness, a lead hand, testified that the two workers regularly made mean-spirited remarks about the complainant whenever she left the area. The lead hand stated that he eventually confronted the two employees and told them to stop, warning them that their comments were unacceptable and could be reported.
The union argued that the two workers had no recollection of the June 2022 incident due to the delay in discipline, but Anderson found this claim unsupported by the evidence. The statements they made, along with those of their co-workers, suggested that the events were memorable enough that the grievors should have retained some recollection.
“The statements do not unequivocally support the suggestion that the grievors would not have been aware that comments and gestures they allegedly made bothered (the complainant),” Anderson wrote. He pointed to testimony where she stated that “they know it bothers me — they say it. I walk away — they laugh.”
Although the ruling denies the union’s motion to dismiss the suspensions outright, the case is set to proceed to a full hearing on the merits, where the facts of the allegations will be examined in greater detail.
In addition to rejecting the motion to void the discipline, Anderson also addressed several pre-hearing production requests made by the union. The union sought communications between the complainant and a City of London official concerning the events of June 15, 2022, as well as documents related to an internal complaint made by the lead hand about the complainant.
While Anderson ordered the employer to produce some of the requested communications between the two, he denied the request for documents pertaining to the lead hand’s internal complaint, determining that it was not relevant to the sexual harassment allegations at the centre of the grievances.
The arbitrator concluded by directing the City to provide further particulars to the union as the case advances to a hearing on the substantive issues.
For more information, see London Civic Employees Local Union No. 107 (Cupe) v Corporation of the City of London, 2024 CanLII 90763 (ON LA).
