Sexual harassment is a common yet very serious occurrence which has historically targeted more women than men. However, a recent labour arbitration case, St. Lawrence College v Ontario Public Service Employees Union, Local 418 (2023) is of interest for many reasons, not least because the accused was female and the victim male.

The facts were fairly straightforward. St. Lawrence College terminated Janice Spencer, a twenty-year employee with an unblemished performance record for just cause following a positive finding of sexual assault raised by a male college.

The primary allegation raised against Ms. Spencer was she had placed both her hands on the complainant’s buttocks, reached through his legs, and cupped and squeezed his genitals.

Ms. Spencer denied the allegation and offered an alternative explanation, which the Arbitrator eventually rejected. Ms. Spencer unsuccessfully argued that she was trying to help adding that this how she touched her kids.

The male complainant eventually launched a formal complaint against Ms. Spencer, which a third-party investigator investigated. The third-party investigation concluded that Ms. Spencer had committed sexual assault, not just sexual harassment, thereby justifying termination for cause.

Ms. Spencer, who was represented by OPSEU, filed a grievance, and argued that Ms. Spencer’s actions were not sexual. In the alternative, the union argued that, at worst, Ms. Spencer’s actions were sexual harassment, not sexual assault.

The Arbitrator rejected the union’s position and found sufficient evidence to show that the touching was not accidental and that there was no reason for Ms. Spencer to have touched the complainant as she did. In other words, she did not need to help in the way she did.

The Arbitrator upheld the termination, concluding that Ms. Spencer’s misconduct was egregious enough to make continued employment impossible.

At the heart of this case is the impact of Ms. Spencer’s lack of stated remorse and awareness of the consequences of her actions. That lack of awareness cost her a secure, union protected position. The Arbitrator was very critical of Ms. Spencer for not taking any accountability for her conduct.

Citing case law, the Arbitrator emphasized that where the conduct affects the bodily autonomy of a co-worker, failure to express remorse and apologize for one’s actions will not vitiate other mitigating factors such as long service and a clean disciplinary record.

The Arbitrator referenced the doctrine of “trust equity” and how the impact years of service can have on the final outcome. While years of goodwill is a significant mitigating factor, without an acknowledgement of wrongdoing and an apology, an employee’s trust equity will only carry them so far. Further, an early acknowledgement and apology is attributed more weight than one which comes at the hearing or later in the process. While Ms. Spencer built up a significant amount of trust equity over her twenty year career, that trust equity was shattered when she committed the workplace sexual harassment and sexual violence and failed to acknowledge her misconduct and failed to apologize.

“With respect to the Grievor’s acknowledgement of wrongdoing and evidence of remorse, I find that there was neither an acknowledgement of wrongdoing nor evidence of remorse. The Grievor, at no time, acknowledged that she touched the Complainant’s buttocks and genitals. The Grievor maintained throughout that she touched the Complainant’s hips or hip area. The acknowledgment of wrongdoing was never present. Furthermore, the Grievor, although upset and apologetic for how the Complainant felt, did not apologize for her actions nor did she show a sense of remorse for her misconduct. The Grievor maintained her denial of the incident throughout the investigation and hearing. The Grievor’s workplace misconduct was egregious and warrants discharge. The Grievor’s years of service and clean disciplinary record, although mitigating factors, are, in the face of a lack of acknowledgement and remorse, insufficient to warrant lesser discipline.”

This decision is a powerful reminder that tolerance for sexual harassment is under greater scrutiny and that employers are well advised to educate their employees about the risks associated with any touching at work. Intent is less critical, and where there has been severe wrongdoing, an apology can go a long way and even, in some cases, might even save your job.