An arbitrator has overturned the termination of a Nova Scotia Public Works Supervisor, citing insufficient evidence of sexual harassment and a flawed investigative process.
The case centered on JB, a Supervisor with the Department of Public Works since 2014, who was terminated on Feb. 2, 2023, based on allegations of sexual harassment and unco-operative behavior during the investigation. The complainant, BD, a member of her crew, claimed that JB made unwelcome comments and advances between January and March 2022.
Arbitrator Susan M. Ashley, after reviewing the evidence, found that the allegations did not meet the threshold for sexual harassment as defined by the department’s Respectful Workplace Policy. She noted that the comments and behaviors in question did not constitute “behaviour of a sexual or romantic nature which is known or ought reasonably to be known as offensive or unwelcome and makes the receiver feel uncomfortable.”
During the investigation, BD reported that JB made several inappropriate comments and calls, including statements like “This is going to be really hard for me. I still have feelings for you” and suggestions to meet privately. However, JB contended that these interactions were either misinterpreted or fabricated by BD to create marital strife.
The investigation, led by an employee from the Public Service Commission, found JB’s responses inconsistent and her refusal to provide certain notes obstructive. The investigator testified that JB’s behaviour during the investigation, including defensive and evasive responses, contributed to the decision to terminate her.
However, Arbitrator Ashley pointed out that much of the evidence against JB relied on hearsay and lacked direct corroboration. For instance, while BD’s co-workers and his wife supported his version of events, their statements were based solely on what BD told them. Ashley emphasized that such hearsay evidence, though admissible, carried limited weight in this context.
The ruling also highlighted that JB had been diagnosed with PTSD related to previous workplace trauma, which may have influenced her responses during the investigation. Despite acknowledging that the investigation process might have felt adversarial to JB, Ashley concluded that JB’s actions did not warrant termination.
Small-town workplace
Further complicating the case were the contextual issues at play, including the dynamics of a small-town workplace where rumours and personal relationships could heavily influence perceptions. BD himself admitted that his concerns about JB’s return to the workplace stemmed partly from the gossip among co-workers about their past interactions.
The arbitration decision underscored the importance of considering the entirety of the evidence and the credibility of all parties involved. Ashley noted, “Both [BD] and the Grievor had self-interest in their version of events being believed,” and stressed that the employer had failed to prove its case to the necessary standard.
Lack of co-operation
In addressing the second prong of the termination—JB’s alleged lack of cooperation during the investigation—Ashley found that while JB’s refusal to provide her personal notes was a point of contention, it did not justify termination. The notes, which JB eventually submitted during arbitration, largely supported her account of events and contained significant redactions she explained as efforts to protect her privacy.
Ultimately, Ashley ruled that the termination was disproportionate and ordered JB’s reinstatement, stating, “It would be a disproportionate and harsh result for the Grievor to lose her employment of nine years, a position for which she pursued specific training, because of feelings of resentment towards the Public Service Commission.”
Ashley also noted that she would “decline to make a damage award in these circumstances, had I the power to do so.”
The decision also emphasized the need for a fresh start and the exercise of good faith and good will on both sides to move past the contentious investigation and allegations. Ashley left the question of damages to the parties, retaining jurisdiction in the “unlikely event that issues should arise.”
For more information, see Nova Scotia Government and General Employees Union v Nova Scotia (Department of Public Works), 2024 CanLII 69941 (NS LA).
Sidebar: Flaws in the investigation
Here’s a quick rundown of the issues the arbitrator had with the investigation.
1. Reliance on Hearsay Evidence: The investigation heavily relied on hearsay evidence. Statements from BD’s co-workers and his wife, which supported his claims, were based solely on what BD told them. Arbitrator Susan M. Ashley emphasized that while hearsay evidence is admissible, its weight is limited, especially when direct corroboration is lacking.
2. Inconsistent Standards of Credibility: The investigator consistently found JB’s responses lacking credibility, even on minor discrepancies. In contrast, BD’s statements were taken at face value without the same rigorous testing for consistency. This double standard in assessing credibility undermined the fairness of the investigation.
3. Inadequate Corroboration: Many of the allegations, such as frequent calls and inappropriate comments, lacked direct evidence. JB’s phone records, for instance, did not support claims of numerous after-hours calls. The investigation’s conclusions often depended on BD’s word against JB’s, with little independent verification.
4. Contextual Misinterpretation: The investigation did not adequately consider the complex context of the small-town workplace, where rumors and personal relationships could skew perceptions. BD’s concerns about working with JB were influenced by workplace gossip, which was not sufficiently scrutinized in the investigation.
5. Handling of PTSD Diagnosis: JB’s PTSD diagnosis, linked to previous workplace trauma, may have influenced her defensive and evasive responses during the investigation. Despite being aware of her condition, the investigation did not fully account for how it might affect her behaviour and responses.
6. Delays and Process Issues: While the investigation noted delays caused by JB’s unresponsiveness to emails, it failed to consider similar delays attributable to other parties. Additionally, the investigation’s process changed tone significantly after the initial interview, contributing to JB’s perception of a biased and adversarial approach.
7. Personal Notes Controversy: The investigator placed significant emphasis on JB’s refusal to provide her personal notes, which she used as a memory aid. Although JB eventually submitted these notes during arbitration, the investigation had already concluded her non-cooperation as a major factor for termination, despite her right to privacy over personal documentation.
Conclusion: These investigative flaws contributed to a decision that the arbitrator found disproportionate and unjustified, ultimately leading to JB’s reinstatement. The case highlights the need for thorough, unbiased, and well-corroborated investigative processes in workplace harassment allegations.
