Court rebukes arbitrator in city sex assault case

Alberta Court of Appeal has sided with the City of Calgary in reversing an arbitrator’s decision that a municipal employee who grabbed the breasts of his co-worker should not have been terminated.

In a 2-1 decision released Wednesday, the panel said the arbitrator erred in deciding the offence was a “lower-end sexual harassment” that instead warranted a nine-month suspension without pay and further workplace training.

“There can be no doubt that the grabbing and squeezing of another’s breast without consent is sexual assault. Sexual assault, by its very definition, is serious misconduct,” Justice Barbara Lea Veldhuis wrote in allowing the city’s appeal.

The unidentified employee was fired after a city investigation determined he had grabbed and squeezed the complainant’s breast without her consent. His union, CUPE Local 37, grieved the termination, which was then heard by the arbitrator, who ruled the punishment was too harsh.

The City of Calgary took the case to the province’s highest court after a judicial review upheld the arbitrator’s decision. The matter will now be heard again before a different arbitrator.

In allowing the appeal, the two justices said the arbitrator did not consider the safety of other city workers. “In our view, the arbitrator focused on the interests of the complainant and the grievor without adequately considering the interests of all employees,” Veldhuis wrote.