Northern Exposure

Alleged Harasser Sidelined during Arbitration

By Frederic Parisien

Workplace harassment, at the onset, involves two players — the harasser and the harassee. A third party is added once a complaint is filed — the employer. And a fourth player, the union, is added if that complaint is a grievance. To what extent does the alleged harasser continue to be a party in Canada? In Association du personnel de soutien du College v. College d’enseignement general et professionel, the Quebec Court of Appeal recently said that the harasser takes a backseat to the main parties — the employer and the union.

A laboratory technician at a Montreal-area college filed a harassment complaint against a teacher. When the college’s internal investigation did not support the harassment allegations, the union filed a grievance on the harassee’s behalf. The college, as the employer, was called to defend the grievance. But the alleged harasser sought to intervene and obtain full party status.

Intervention of the harasser
At the very onset of the hearing, the alleged harasser claimed that his right to honour, dignity, and reputation were being directly affected by the allegations of the grievor.  He asked to be recognized as a party to the arbitration. Even though neither the union nor the employer objected,  the arbitrator granted the teacher only limited intervenor status. The teacher was given the right to be represented by an attorney, be present at all hearings and to testify on his own behalf. The teacher also was allowed to cross-examine the grievor, but only to the extent or on matters where his position diverged from that of the other parties.

After the arbitrator determined that the grievor had engaged in the complained-of harassment, the union asked for an order directly against the teacher, barring him from entering the harassee’s work area. The teacher objected on the basis that he had not been granted full party status and his rights could not consequently be directly affected. The arbitrator didn’t agree and explained that while the teacher was not a party to the process, she was able to make orders against him in exceptional circumstances.

The teacher had the temporary agreement of the Quebec Superior Court when the arbitrator’s decision was reviewed. The Superior Court agreed that the teacher should have been granted full rights as a party.

Court of Appeal — a fresh look
But that agreement didn’t last for long. In a swift and decisive verdict, the Quebec Court of Appeal quashed the Superior Court’s decision and brought us back to basics:

  • the parties to a grievance, including a harassment grievance, are the employer and the union; and
  • it is the employer that has the obligation to provide a harassment-free workplace.

The Court of Appeal was firm in saying that all orders, barring exceptional circumstances (such exceptional circumstances were not present here, according to the Court), must be directed at the employer and not its employees. The decision to discipline a harasser rests solely with the employer, in its efforts to implement a safe work environment.

Take away for employers
For all employers across Canada where harassment prevention legislation is in place, this decision is a clear reminder that the obligation to impose both preventative and corrective measures falls squarely on their lap. In the context of harassment, Canadian employers generally cannot divorce themselves from their employees’ actions. This is why employers should diligently investigate harassment allegations when they are brought to their attention. When the matter proceeds to hearing, an employer should carefully consider what positions, if any, it will take in defending the grievance — something that may involve a balancing act between the positions of the grievor and the alleged harasser.

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