An arbitration panel in Alberta has ruled that the termination of a housekeeping attendant at Capital Care Group was excessive — though his conduct towards female co-workers was inappropriate and warranted discipline.
The ruling by the panel scrutinized both the conduct of the employee and the process followed by the employer, ultimately finding that the employer’s investigation was flawed.
Reasons for termination
G.F., who had been employed at Capital Care’s Strathcona campus in Sherwood Park, Alta., since 2006, was fired in August 2021 after several female co-workers accused him of making inappropriate comments and engaging in unwanted physical contact. The accusations spanned nearly a decade, with some dating back to as early as 2012.
His termination letter outlined a series of allegations, including inappropriate jokes, sexual comments, and physical contact that violated the employer’s Respectful Workplace Policy and the Occupational Health and Safety Act.
G.F.’s actions included repeatedly asking co-workers if they needed CPR, calling one co-worker “Angelina” after commenting that her lips resembled Angelina Jolie’s, and making other inappropriate remarks. One of the more serious allegations came from a former co-worker who testified that G.F. had hugged her in a workplace closet in 2019 and pressed his body, including his groin, against her.
The employer argued that his conduct amounted to sexual harassment and justified his dismissal. However, G.F. denied many of the allegations, including the most serious ones involving physical contact, and argued that his comments were meant as jokes without sexual intent.
Investigation issues
Arbitrator Norrie, writing for the majority of the arbitration panel, acknowledged that G.F.’s behaviour was inappropriate but found that the employer’s handling of the investigation cast doubt on the credibility of some of the allegations. The ruling emphasized that while G.F. had violated workplace policies, the investigation conducted by his supervisor lacked rigour and fairness.
The investigation began in July 2021 after a co-worker, complained to the supervisor about G.F.’s repeated comments asking if she needed CPR. The co-worker testified that she initially viewed the comments as a joke but grew uncomfortable over time. G.F. was instructed to stop, and he apologized. However, the investigation expanded after the complaint, with several other employees coming forward to allege inappropriate behaviour by G.F., including unwanted advances and comments with sexual overtones.
One of the key criticisms of the investigation was the lack of specificity and thoroughness in gathering evidence. The arbitrator noted that the investigator failed to obtain written statements or verify the accuracy of the interview notes with the witnesses. This, coupled with the fact that some of the allegations were three years old, created significant credibility issues.
“The flaws in the investigation mean that we are unable to conclude whether the Grievor understood all of the allegations and whether he was being candid or not in the investigation,” Norrie wrote. She further noted that G.F.’s conduct — while problematic — did not amount to sexual assault as argued by the employer.
Communication issues
The ruling also highlighted the lack of clear communication between G.F. and the employer, particularly regarding the seriousness of the allegations. G.F., whose first language is Spanish, testified that he was confused during parts of the investigation and did not fully understand the scope of the accusations against him. This was exacerbated by the fact that he was contacted about the investigation while on vacation and was not given adequate time to respond.
The arbitration panel determined that while the jokes were unwelcome and created discomfort among his co-workers, they did not rise to the level of sexual harassment requiring immediate dismissal. The board also considered G.F.’s long service with the company and his previously clean record as mitigating factors.
Norrie found that a warning or lesser form of discipline would have been more appropriate and criticized the employer for not giving him an opportunity to correct his behaviour. The ruling pointed out that G.F. had demonstrated a willingness to change, as evidenced by his apology and cessation of the CPR comments following the initial complaint by his co-worker.
“The termination was excessive in the circumstances,” Norrie concluded. “While the Grievor’s conduct was inappropriate, it did not justify termination without the opportunity for progressive discipline.”
The panel has remitted the issue of his reinstatement and any potential remedies, such as back pay, to the employer and union to negotiate. However, the decision leaves open the possibility for G.F.’s return to the workplace under certain conditions, including compliance with the Respectful Workplace Policy.
For more information, see Capital Care Group Inc. v Alberta Union Of Provincial Employees, 2024 CanLII 81162 (AB GAA).
