An Employer’s Delay in Imposing Discipline for Alleged Sexual Harassment Does Not Necessarily Render the Discipline Null and Void
Introduction
A recent labour arbitration case regarding alleged sexual harassment in the workplace demonstrates that an employer’s delay in dealing with allegations of workplace misconduct will not necessarily constitute grounds to set aside any discipline that the employer may have imposed in response. In London Civic Employees Local Union No. 107 (CUPE) and the Corporation of the City of London 2024 CanLII 90763 (ON LA), Arbitrator Anderson denied a request from the Union to have disciplinary measures set aside solely on the basis that the Employer had taken eight or nine months to deal with the underlying allegations. This decision highlights that an employer’s delay alone may not be enough to declare discipline null and void; more importantly, there must be resulting prejudice.
Background
The Grievors worked for the Employer in construction. On June 15, 2022, the Grievors, both of whom are men, allegedly made overtly sexual comments and gestures during an interaction with their fellow employees at their workplace. One of these employees, a woman, became visibly upset and walked away. The employee promptly complained of the incident to the Employer’s Human Rights Division. The Employer commenced an investigation.
The City interviewed two key witnesses in August 2022 and November 2022, respectively. Their testimony demonstrated that there was a workplace culture of “bullshitting.” This included “[dropping] f-bombs” and similar language that would not have been uncommon within the construction industry. However, their testimony did not demonstrate that this “bullshitting” would have included overtly sexual comments or gestures. This, the evidence demonstrated, would have been out of the ordinary and would have stood out or been memorable to those in attendance.
In January 2023, the Grievors were interviewed separately. The first Grievor testified that they did not recall the details of the incident in question, although they did indicate that they would not have classified any comments they made on the date in question as “boys locker room talk.” The other Grievor denied having made any inappropriate comments or gestures altogether and denied that there was even a workplace culture of “bullshitting” at all.
The City’s investigation took eight or nine months, despite the City’s workplace investigation policy, which provided it should not have taken more than three.
In March 2023, the Grievors received a five-day suspension for the alleged misconduct. The Grievors grieved this decision. The Union brought the preliminary motion to have the discipline declared null and void based on the City’s delay.
Was the Delay Unreasonable?
Arbitrator Anderson first considered whether the collective agreement contained any express time limits for the imposition of discipline. It did not. In lieu, both parties agreed Arbitrator Anderson could determine whether the City’s delay had been unreasonable.
The parties also agreed on the length of the delay in this case, which was “eight or nine months.” Arbitrator Anderson called this “a long period.” Also relevant was that the City’s policies provided the investigation was to be completed “in a timely matter and within three (3) months” from the date of the complaint/initiation of the investigation.
On the facts, Arbitrator Anderson found that the City’s delay in dealing with the allegations had been unreasonable. The Grievors had a reasonable expectation that any allegations would be investigated and dealt with expeditiously and in accordance with the City’s policies.
Did the Delay Result in Prejudice?
After finding the delay had been unreasonable, Arbitrator Anderson turned to “the most important consideration: the question of prejudice.” The central issue was: had the City’s unreasonable delay adversely impacted the Grievors’ ability to properly defend themselves against the allegations, such that the discipline should be set aside?
The Union’s position was that the delay had resulted in prejudice to the Grievors. The Union argued that because “bullshitting” was part of the workplace’s culture, the Grievors could not reasonably be expected to recall, after an eight or nine-month period, whether their “bullshitting” on that particular occasion included the alleged sexual comments or gestures. Accordingly, the Union requested that the suspensions be set aside based on the City’s delay and the resulting inability of the Grievors to defend themselves against the allegations.
Arbitrator Anderson adopted the analytical framework in World Kitchen Canada (EHI) Inc. V. U.S.W.A., Local 9045 (2007). This decision states that an adjudicator must weigh three considerations when determining whether an employer’s delay in imposing discipline was so unreasonable that the discipline must be set aside as a matter of fairness. The three considerations are as follows:
(1) The prejudice to the grievor that resulted from the employer’s delay;
(2) The reasonableness of the employer’s grounds for delay; and
(3) The longstanding notion in arbitral jurisprudence is that discipline must be meted out in a reasonably expeditious fashion.
World Kitchen Canada also provides that the most important consideration is “[t]he prejudice to the grievor that resulted from the employer’s delay.”
Arbitrator Anderson acknowledged that arbitral jurisprudence distinguishes between “routine, ordinary, everyday events” for which the passage of time would likely impact an employee’s ability to recall a specific event and “unusual out-of-the-ordinary events” for which an employee would be less likely to forget. For example, an employee is much less likely to remember whether they were at their computer on a particular day at a particular time, if this is part of their routine job duties, and if many months have passed. By contrast, an employee is much more likely to remember whether they made a sexist or racist remark to someone if this is not a routine occurrence (which, of course, for other obvious reasons, it should not be).
In applying the applicable legal framework to the facts in this case, Arbitrator Anderson rejected the Union’s position and upheld the suspensions. Arbitrator Anderson determined that the delay in this case was unreasonable but did not prejudice the Grievors. This was because the passage of time in this case did not prevent them from properly defending themselves against the allegations.
More specifically, since the impugned comments and gestures, in this case, would not have been a common occurrence or part of the “bullshitting” workplace culture, as established by the evidence, it stood to reason that the passage of eight or nine months should not have any impact on the Grievors’ ability to recall whether they did or did not make the impugned overtly sexual comments or gestures on the date in question.
In accordance with the above, Arbitrator Anderson dismissed the Union’s motion, and the matter would proceed to a hearing on the merits.
Key Takeaways
This decision demonstrates that an employer’s delay, in and of itself, may not be grounds to set aside discipline. The most important consideration for an arbitrator in such cases will be the consideration of prejudice. Specifically, was the delay prejudicial to the grievor. This will be more important than the length of the delay or whether the delay was unreasonable, although these are also, of course, important factors to be considered.
In all instances, whether prejudice exists in any given case will depend on the facts and an effective application of the applicable legal framework to those facts. To the extent possible, employers should always avoid delays of any length when investigating and dealing with allegations of workplace misconduct. This will help to avoid the potential of having such arguments being raised in arbitration in the first place.
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