[A Decision] That Makes You Go “Hmmm”… When is calling your female coworker your “girlfriend” and motioning to “smack her buttocks” not sexual?

Kelly VanBuskirk, KC, PhD, C. Arb. 2026-09-12

An arbitration decision that arose out of employee misconduct at Kouchibouguac National Park in New Brunswick has me questioning what we know, or think we know, about sexual harassment.  The case arose after a male employee was dismissed as a result of several years’ worth of misconduct directed toward a female coworker.  The misconduct, as found by the arbitrator, included: 

·         Between 2020-2022, repeatedly referring to the victim as his “girlfriend”.

·         Between 2019-2022, persistently seeking out the victim at work.

·         In 2021, repeatedly touching the victim’s thighs after she told him to stop.

·         In 2021, following the victim into a small storage room such that she had to tell him to move away so that she could exit.

·         Between 2021-2022, making gestures as if to slap the victim’s buttocks.

·         Continuing to go to a particular area of the park where the victim worked after being instructed not to do so.

·         Repeatedly attending the victim’s campsite.

It was also found that, before 2020 the Grievor had taken respectful workplace training from Parks Canada and that he had been repeatedly told by the victim and at least one other coworker to stop the misconduct.  In 2022, he was told by the employer to stop, as well, but the first of these warnings was found to lack specificity.  Although the employer told the Grievor that he was bothering coworkers, “[362] It was difficult for him to change his behaviour immediately and appropriately when he did not know the nature and extent of the acts that he was accused of.”

Hmmm.

In respect of this repeated misconduct, the arbitrator found that:

[342] Although he gestured as though he intended to smack [the victim] on the buttocks, which is misconduct, there is no evidence to suggest that he had any sexual intent. He also repeatedly called her his “[translation] girlfriend”, got very close to her in the storage room at Shelter F, and sought her out in the Park over a long period and in the parking lot early in the morning. Although these were acts of misconduct that had an impact on her, and although some of these acts caused her to fear for her safety, the evidence does not indicate that he committed these acts with a sexual motive.

Hmmm.

The result is that a 30-day suspension was ordered in the place of termination. 

A number of concerns arise from this decision. First, the idea that the Grievor’s misconduct was not sexually motivated is difficult to understand. Second, it is challenging to understand how the various warnings and notices provided to the Grievor regarding his misconduct were deemed insufficient. Third, it is surprising that the Grievor’s approaches to the victim of the sexual harassment after learning of her complaint were not found to be more serious than they were.

A lesson for employers

This decision underlines a point that has been observed in some other cases:

Even in cases of serious misconduct, an employer’s handling of the matter will be scrutinized as much as the misconduct itself. If an employer fails to act swiftly and clearly in response to harassment, an arbitrator or judge may be sympathetic to the harasser.

If you are an employer, we would be happy to discuss how we might be able to help avoid this kind of workplace law problem.