In Corporation of the City of Calgary v Amalgamated Transit Union, Local 583, 2023 CanLII 20867 (AB GAA), Arbitrator James T. Casey dismissed the union’s grievance of an employee’s job termination, finding that his off-duty sexual assault of a co-worker constituted sufficient just cause for his termination.    

Background

The co-workers worked for the City of Calgary (City) as transit operators.  After work the grievor made sexual advances toward his female coworker (“AB”), which she rejected. The grievor then touched the co-worker in a sexual manner without her consent.

AB did not make a complaint in the workplace, but the employer became aware of the incident and conducted an investigation.  The employer found AB’s evidence was clear and straightforward, but found the grievor’s evidence vague, self-serving, and untruthful.  The employer advised the grievor that his employment would be terminated for cause. 

Union’s Argument

The union argued that the arbitrator should take different approaches depending on his findings:

• If he found the grievor only made improper comments to AB, he should find the employer could not discipline the grievor because his comments were made when he and AB were “off duty”;
• If he found that the grievor sexually assaulted AB, significant discipline was appropriate, but termination was too severe.  Given mitigating factors (e.g., the grievor’s lengthy, discipline-free service, his apology at the arbitration, and his feelings of remorse), a lengthy suspension was appropriate. 

Award

Arbitrator Casey concluded that dismissal was not an excessive response in the circumstances and dismissed the grievance.

The arbitrator considered the jurisprudence on off-duty conduct and specifically cited the following excerpt from Canadian Labour Arbitration, 5^th ed.¹ at chapter 7:15:

…an employer has no jurisdiction or authority over what employees do…outside working hours, unless it can be shown that its legitimate business interests are affected in some way…certain activities such as assault or sexual harassment even in off-hours will have a direct bearing on most employment relationships and can support serious disciplinary penalties, including dismissal. 

Arbitrator Casey, citing Lethbridge (City) v. A.T.U. Local 987 (2000) 98 L.A.C. (4^th) 264, noted that, to support discharge for off-duty conduct, an employer must establish that: the grievor’s conduct harms the Company’s reputation; the grievor’s behaviour renders the employee unable to perform their duties satisfactorily; the grievor’s behaviour leads to refusal, reluctance or inability of the other employees to work with them; the grievor has been guilty of a serious breach of the Criminal Code thus rendering his conduct injurious to the general reputation of the Company and its employees; and/or the grievor’s conduct makes it difficult for the Company to efficiently manage its work and direct its workforce. 

Finally, the arbitrator noted that it is not necessary for an employer to show that all of the criteria listed above exist; depending on the offence’s impact, any one of the consequences may warrant discipline or discharge.  The arbitrator noted also that the test outlined above was reflected in the City’s policy addressing when off-duty conduct justifies a disciplinary response. With respect to impact on reputation, the arbitrator can exercise their own judgment and consider what a fair-minded and well-informed member of the public may think about the off-duty conduct. 

Arbitrator Casey concluded that the grievor’s conduct satisfied several of the test’s criteria and justified some form of discipline.  Among other observations about context, the arbitrator noted the grievor is identified with and represents the City and fellow operators to the public, and that “[a] transit operator is in a position of trust working unsupervised with vulnerable populations such as the elderly, the young, and sometimes the mentally ill.”

Next, Arbitrator Casey considered several factors, including the seriousness of the misconduct; the City’s legal responsibilities under occupational health & safety legislation; the grievor’s seniority and disciplinary history; whether progressive discipline was utilized; the impact of the termination on the grievor; the impact of the misconduct on AB; and the grievor’s rehabilitative potential. He concluded that termination of employment was not an excessive response and there were insufficient reasons to replace the termination with a lesser form of discipline.

Bottom Line for Employers

City of Calgary puts employers on notice that if an employee engages in serious misconduct while off duty, the termination of their employment for cause may be upheld.  This will especially be the case when the employer’s reputation is harmed by the employee’s off-duty actions, the employee occupies a position of trust, and the employee’s conduct creates operational challenges for the employer.  In City of Calgary, the employee’s sexual harassment and sexual assault of a co-worker while off duty justified the termination of his employment for cause.  Employees terminated for engaging in other types of extreme misconduct while off-duty may similarly find adjudicators concluding that the termination of their employment for cause was justified.  In all cases, however, a contextual analysis of the surrounding circumstances is key.