Employee Prevented from Suing Employer for Sexual Harassment where Collective Agreement contains Harassment Provision

By Brian Hanulik

In Oliver v. Severance et al., 2007 PESCAD 02 (C.A.), a Court in PEI recently dismissed an action for harassment and sexual harassment in the workplace, holding that the complaint arose under the collective agreement. As such, the Appeals Court found that it had no jurisdiction to hear the case. Although the collective agreement only dealt with sexual harassment, the Court found that the employer had a duty under the collective agreement to provide a safe and healthy workplace, which covered general harassment complaints. In June 2007, the Supreme Court of Canada denied leave to appeal in this case.

The Facts

The Plaintiff, Ms Oliver, was employed as a curator at the P.E.I. Museum and Heritage Foundation (the “Foundation”), a provincial Crown corporation. She alleged that the executive director, Mr. Severance, harassed her by making demeaning, lewd, and offensive over a three year period. Oliver claimed to have suffered psychological and psychiatric issues as a result of this ongoing harassment. Oliver had to cease her employment as a result of these difficulties in August 1995 and ultimately obtained a severance package from the employer in 1999.

Oliver sued Severance in 2001 and alleged that the Foundation Board of Directors (or the Minister responsible for the Foundation) knew or ought to have known about the alleged harassment. She claimed that Severance abused his power and authority over her by humiliating her through the ongoing harassment and, as a result, that she was entitled to general, special and punitive damages. The defendants brought a motion to strike out the cause of action, claiming that the dispute arose under the collective agreement and, therefore, the Court did not have jurisdiction. The motions judge refused to strike out the action and the defendants appealed to the Appeals Division of the PEI Supreme Court.

All versions of the collective agreements between the employer and the union since 1990 contained grievance and arbitration procedures, and included an employee’s right not to be discriminated against on the ground of sex. Each agreement also contained provisions barring harassment. Until 1998, the relevant Article barred sexual harassment only, but after this date it was broadened to prohibit harassment generally. The collective agreement also contained a provision that employees wishing to pursue a concern arising from sexual harassment or harassment may submit a grievance to the final level in the grievance process.

The Arguments

Oliver claimed that Severance’s conduct amounted to separate, actionable torts for assault and sexual harassment, and breach of fiduciary duty. As such, Severance’s conduct went beyond sexual harassment to include general harassment and abusive conduct, which were not covered by the collective agreement. Therefore, it was her view that the grievance procedure outlined in the collective agreement did not apply and the Court had jurisdiction to hear her complaint.

The defendants’ position was that the complaint arose under the collective agreement and/or the relevant workplace policy. As such, the jurisdiction of the Court was ousted and the matter should have been brought in a grievance under the procedure outlined in the collective agreement. The defendants’ argued that the grievance procedure was the exclusive process for any complaints of sexual harassment, general harassment or verbal abuse.

The Decision

The majority of the Court held that the Court did not have the jurisdiction to hear an action for sexual harassment arising from the workplace when harassment is covered by a collective agreement. The motion to dismiss Oliver’s claim was upheld.

In determining whether the Court had jurisdiction, the majority applied the test set out in the Supreme Court of Canada decision Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, specifically that the binding arbitration provisions contained in labour relations legislation give arbitrators exclusive jurisdiction if the essential character of the dispute arises from the interpretation, application, administration, or violation of a collective agreement.

Applying the test in this case, the Court held that the allegation was that Severance, as Oliver’s supervisor, abused his power and authority. All of the alleged incidents occurred at work. The majority rejected the trial judge’s view that the conduct was not work-related because it “served no legitimate workplace purpose”. The Appeals Court held that harassment never served a legitimate purpose and that Oliver’s allegation that the employer was vicariously liable only made sense if the misconduct was related to the workplace. Justice McQuaid, for the majority, found that:

“The appellant was the respondent’s immediate supervisor. His alleged harassment and abusive conduct all occurred in the workplace and in the performance of his duties in that capacity.”

And further:

“The manner in which the allegations are framed by the pleadings (as an actionable tort and a breach of fiduciary duty) does nothing to alter the factual basis of the dispute. As all the authorities caution, the court in determining the essential character of the dispute should not be distracted by the manner in which the pleadings have framed the legal issues.”

Having found that the dispute arose in the workplace, the majority then had to determine, as per Weber, whether the dispute was explicitly or implicitly within the collective agreement. In this case, it was found that it came under both Article 5 (sexual harassment) and Article 26 (grievance procedure) of the collective agreement.

Justice McQuaid found that the relevant provisions of the collective agreement governed the harassment in this case, even though the policy dealing with non-sexual harassment was not incorporated into the collective agreement until 1998. He found that the definition of sexual harassment under the collective agreements prior to 1998 was broad enough so as to include “all forms of vexatious conduct, verbal abuse, physical abuse and harassment”. He also noted Article 29.01, which stated that:

“The Employer shall make all necessary provisions for the occupational safety and health of employees.”

Justice McQuaid found that harassing and/or abusive conduct that let to an employee’s emotional breakdown, such as occurred in this case, would also be a violation of the employer’s obligation to provide a safe workplace.

As such, the Court held that:

“On a complete reading of the collective agreement in the case at bar, I am satisfied the signatories intended that disputes arising from the type of misconduct alleged on the part of the supervisor (the appellant) toward another employee (the respondent) would be addressed within the ambit of the collective agreement which had, as one its purposes, the establishment of general working conditions for the employees covered by the agreement. Harassment and abusive, vexatious conduct in the workplace are generally inconsistent with the stated purposes of the agreement and specifically inconsistent with the employer’s obligation to provide for the health and safety of its employees. Therefore, the type of alleged misconduct of the appellant agreement and the dispute between the parties is within the ambit of the collective agreement.”

Conclusion

While these cases will largely turn on the exact language of the relevant collective agreement provisions, unionized employees who are the targets of harassment (whether sexual or general in nature) and/or abusive conduct at the workplace will want to involve his/her union representative to assist in determining whether a remedy is best pursued through the grievance arbitration system or through other legal proceedings. This further application of the test set out in the Supreme Court of Canada decision in Weber demonstrates that courts may no longer have or assume the jurisdiction to deal with these matters. As such, harassment issues arising from workplace disputes such as may need to be pursued through a grievance under the collective agreement rather than through civil proceedings.