May 2, 2023
Joseph Oppenheim, Partner and Employment Lawyer at Carbert Waite LLP, was recently featured in an article for the Canadian HR Reporter where he offered his thoughts on a case where Calgary Transit fired a employee for sexually assaulting a co-worker.
In the article “Off-duty sexual assault of co-worker just cause for dismissal: arbitrator”, Joseph discusses the imposing of discipline for off-duty conduct surrounding this matter.
“In the case here, this is a sexual assault, so it’s fair game,“ “The conduct would tend to cause the employer to suffer damage to its reputation so there is no issue [for discipline].”
Despite the co-worker not wanting to pursue the matter, Joseph argues that it was reasonable for the city to consider taking action.
“You can’t jeopardize the safety of a co-worker at any time or in any place,” he says. “The employer has obligations not only to the victim, but also to the workplace and all the other employees… under the Occupational Health and Safety Act.”
According to the arbitrator, the worker’s misbehavior warranted disciplinary action. The arbitrator further stated that due to the severity of the worker’s sexual harassment and assault, which posed a threat to workplace safety, and the worker’s failure to demonstrate genuine understanding of his actions or to fully accept responsibility, it was appropriate to terminate his employment. Joseph goes on to say that:
“When you commit any kind of an assault against a co-worker, whether on-duty or off, you are jeopardizing the safety of your co-worker and the workplace,” adds Oppenheim. “You now have someone who has proven to be a dangerous person who’s free to commit further misconduct against an employee or others, so there’s at least an obligation on an employer in these circumstances to conduct a workplace investigation in order to meet its obligations under the Occupational Health and Safety Act in Alberta.”
The rest of the article is behind a paywall, but if you are a subscriber of Canadian HR Reporter, you can read it here.