In a judicial review application, a judge of the Nunavut Court of Justice upheld a decision of an arbitrator to award damages to a unionize employee who quit because of the timeliness of the employer’s harassment investigation.

CC was employed in a senior business development role with the Government of Nunavut for approximately 2 years and half years. He filed a complaint with his employer alleging that his female supervisor of approximately three months, MQ, discriminated against him on the basis of sex and race.  The employer assigned an employee to investigate the claim but the investigator resigned four months after the initial complaint was filed. The employer assigned another employee to investigate the complaint but CC resigned citing the government’s inability to provide a workplace free of harassment.  Prior to his resignation taking effect, CC grieved his employer’s inability to resolve his harassment complaint in a timely manner.

In his first of two decisions, Arbitrator Chodos concluded that the employer breached the collective agreement because it failed to adequately address the harassment suffered by the Grievor. The evidence indicated that CC was “suffering anxiety issues” and “trouble in his marriage” among other matters including continued harassment by his supervisor. The arbitrator found that “the Employer took some six months to investigate and submit a report on the harassment allegations, and clearly in so doing did not respect its own time-lines as set out in its own policies, I do not believe that this is a sufficient justification or basis for the Grievor taking the step of submitting his resignation.”  In fact, the employer concluded its own internal investigation which explicitly noted that harassment had occurred in this case. Arbitrator Chodos indicated that the problems between CC and MQ were ongoing and continued even after the complaint was filed. Even though the employer was aware of the harassment, it failed to provide some form of separation for the grievor from his supervisor.   In the circumstance, the arbitrator concluded that the resignation was a foreseeable consequence of the employer’s failure to address the harassment complaint. In a supplementary remedial decision, Arbitrator Chodos awarded the grievor $6000 in general damages and $6000 in special damages connected to moving expenses as well as a year’s compensation less earnings to find new employment.

Judge E.D. Johnson, on the standard of correctness, upheld the arbitrator’s decision.  Among other things, Johnson J. accepted that arbitrators should be “liberally empowered to fashion appropriate remedies, taking into consideration the whole of the circumstances.”  In addition, the judge ruled that the collective agreement provided sufficient authority to grant the aforementioned remedy.

Nunavut v. Nunavut Employees Union 31 Admin. L.R. (5th) 144 is an explicit reminder to employer’s that interim measures may need to be implemented pending the resolution of an investigation. An investigator ought to question parties to a complaint about any concerns to their health or safety before the investigation proceeds.  If a risk to an employee is discovered it is best for that information to be communicated to the employer so it can promptly take steps to protect the employee’s safety.  The employer may be required to act by removing an employee from the workplace or reassigning employees.  In any event, the failure of an employer to take proactive steps to protect an employee’s health and safety in harassment complaints may exempt the complainant from the “work now, grieve later” rule thereby potentially entitling an employee to damages.