Sexual harassment cases often offer novel issues. One such case arose recently in a unionized context. The female worker had complained of improper conduct by her immediate supervisor. The company investigated and found the complaint to be without merit. The union grieved and the issue then proceeded to arbitration.

A preliminary issue as to whether the grievor should be required to continue to work directly with the alleged harasser pending the hearing of the arbitration. The union requested an interim order stating that the two not be scheduled to work together pending the final result.

To answer this question, the arbitrator applied the following two part test:

  1. Was there an arguable case on the merits presented by the grievor?
  2. Does the balance of convenience favour the granting of the order as requested?

The arguable case as step one was reflective of the need to eliminate frivolous cases and ensure that only legitimate allegations may be used to establish the granting of interim relief. In this instance, it was not disputed that there was indeed such an arguable case presented.

As to the second branch of the test, the arbitrator, in weighing the relative harm to each party, noted that the employer had already scheduled, to a great extent, different shifts for both parties. The employer held the position that they had separated the schedules to the best of its ability and the order would cause undue harm for the employer. Hence, on this factor, there was seen to be a modest degree of economic harm suffered by the employer, should the order be granted. On the other hand, the grievor would likely suffer from health and safety issues, and there was the potential for violations of the Occupational Health and Safety Act and the Human Rights Code.

The order was granted.

Application of the Decision to Employment Scenarios

The principles set forth in this case could readily be applied to any employment relationship which remains in tact, given such allegations. The context need not be limited to an arbitral setting. The concept could be applied in a human rights administrative complaint or even a tort claim in a civil context.

The law is a dynamic entity. Similar recognition of this concept was reflected in a civil case in which the court allowed independent representation to a female worker whose allegation of sexual harassment led to the termination of her male colleague. In the subsequent civil action brought by her alleged offender against the company for wrongful dismissal, the female worker was allowed this right of counsel, even though she was not a party to the action.

Employers’ & Employees’ Take Away

Creative means of dealing with modern legal issues brought about by the recognition of new social and legal controversies will continue. The law will adapt to deal with such issues. The law is by no means static. Both sides to the dispute must recognize and deal with these issues.

Get Advice Before You Act

For such and, indeed,  any employment issue, contact the offices of Toronto employment and labour lawyers Mallins Law. We regularly advise employees and employers on legal workplace issues. Contact us online or by phone at 647-792-0310 to schedule a consultation.