The Case¹…

A pilot with Sunwing Airlines (the “pilot”) was fired in 2023 for sexually harassing a flight attendant on a layover at a resort hotel. The flight attendant (“AB”) brought a complaint and an external investigator found that the pilot engaged in the following behaviour:

1. At a group dinner, the pilot placed his hand on AB’s thigh/knee;
2. At the same dinner, while AB was eating dessert, a piece of chocolate fell towards her breast, the pilot caught it and said, “If it fell on your boob, I would have ate it off of it.”;
3. Later at a bar, the pilot came up behind AB while she was speaking to others, put his arms around her shoulders and his full body weight on her, squeezed her and said, “You’re so tiny and small.”;
4. At the same bar, when the crew was engaging in a group hug, the pilot brought AB into the hug by putting his arm around her;
5. On a resort tram later that evening, the pilot pulled AB closer to him by lifting and pulling her from her buttocks, said that she needed to be closer to him, then put his arm across her chest and touched her breast.

The investigator concluded that the pilot’s behaviour constituted sexual harassment, and the pilot was fired. The pilot had over 16 years of service and no prior discipline and, as such, the union argued that termination was too strong a penalty.

The union in this case accepted the investigator’s findings of fact, and the parties agreed that the arbitrator could use the investigator’s report in considering any issues related to the pilot’s credibility.

The arbitrator began the decision by noting that there is no dispute that sexual harassment is serious misconduct and that sexual harassment with a physical component (as in this case) is a form of sexual assault and “among the most serious forms of workplace misconduct.” It was further noted that this was not a single incident but a course of conduct over a few hours which progressively escalated. The arbitrator held that this was not a “momentary aberration” and therefore fell “at the higher end of the spectrum of sexual harassment and sexual assault.”

The arbitrator went on to consider the pilot’s evidence that he now understood his conduct was inappropriate and regretted his actions. In this regard, it was concerning that the pilot had received training on harassment on three previous occasions, the last of which was just two weeks before the incidents in question. The pilot argued that this training was just a “cut and paste” of federal regulations; however, the arbitrator noted that this was an online module that required page-by-page completion, and the policy on which it was based clearly defined sexual harassment and the definition of the “workplace” included layover hotels. The pilot argued that Sunwing had failed to properly train him, but the arbitrator held that if the pilot did not learn anything from the training (or from reading the policy) it was because he chose not to pay attention. After also taking into account that the pilot still had not fully acknowledged the extent of his misconduct, the arbitrator found discharge to be reasonable in the circumstances.

What does this mean for the practice…

• The importance of a sound, defensible investigation report, canot be overstated. Like last year’s decision in TMFA v. TMU ², a sound workplace investigation report may narrow the issues to be decided at arbitration – the union accepted the investigator’s findings in this case, leaving only the appropriate discipline to be decided.
• Employers need to take every complaint seriously. Sexual harassment in the workplace continues to be recognized as a serious form of workplace misconduct, and sexual assault as one of the most serious
• Training remains important, but it must be effective and impactful.
  • Although the arbitrator held that the pilot should not have needed training to know that his behaviour was inappropriate, it is important to note that he did  have training … on three previous occasions … the last of which was two weeks before he engaged in the problematic behaviour. Clearly the training did not work.
  • The pilot had been trained using a common online method of having participants scroll through slides referencing a workplace policy. The arbitrator noted that if he did not learn from the training, he was clearly not paying attention – unfortunately, this is exactly the problem with this type of training: people rarely pay attention, and the employer never knows.
  • If an organization is serious about training its employees (and wants to send a message to employees that it is serious), it needs to do more than require employees to scroll through slides in an online slide deck. Even if employees sign saying they have completed the module (and even if they “pass” by answering some basic questions), it is highly unlikely they are taking any important learning back into the workplace.

¹ Sunwing Airlines Inc. (Westjet) v Unifor, Local 7378, 2026 CanLII 15014 (CA LA)

² Toronto Metropolitan Faculty Association v. Toronto Metropolitan University, 2025 CanLII 95115 (ON LA)