Arbitrator upholds BC Hydro decision to fire subforeman over sexual relationship with apprentice

A labour arbitrator has upheld BC Hydro's decision to fire a subforeman who had a heated relationship with an apprentice, which included sexual acts at work.  

The subforeman, a journeyman electrician, was let go in 2018 after the female apprentice alleged the weeks-long relationship started with mutual consent but became increasingly "uncomfortable and unwelcome."

The subforeman grieved the decision, saying the relationship had been consensual throughout.

The arbitrator's decision offers a unique and detailed examination of a workplace romance that featured "outrageous misconduct" but failed to meet the threshold for sexual harassment.

Arbitrator Paul Love agreed with BC Hydro that firing the subforeman was an appropriate repercussion given the power differential, the location of the sexual acts, and the failure to report the relationship as required in BC Hydro's code of conduct.

"I appreciate that from the [subforeman's] perspective this was a hot and heavy affair, but it is one that he knowingly entered into," Love said in the decision.

"He had a duty to say no and knew that he would be in trouble for his conduct if the employer found out about it."

However, the arbitrator determined the affair didn't constitute sexual harassment because it had been consensual, and because the apprentice, who wasn't significantly younger than the subforeman, hadn't been coerced.

He ordered the employer to reinstate the subforeman's certification that enables him to continue working in his field. 

Bond over broken hearts

According to the decision, the relationship began in fall 2015. Both employees were working at an unnamed BC Hydro substation, a component of the province's power grid. 

The apprentice was the only female employee working there, and hers was the most junior position on the crew. The subforeman, one of several people who supervised the apprentice, had worked for BC Hydro for 17 years and had a virtually unblemished record. 

The pair often worked alone together, and over time they formed a friendship. They bonded over their shared loneliness and broken hearts — he from a recently failed relationship, her from the separation from an abusive husband.

"They disclosed personal details about their lives, were playful with each other, and each looked to the other for emotional support," the arbitrator wrote. 

'Do you want to be a good apprentice?'

The relationship intensified that fall, starting with the apprentice texting the subforeman a photo of her midriff.

According to the decision, the sexual conduct at work began shortly thereafter. The apprentice said the subforeman drove her to a tool shed and once inside he asked her: "Do you want to be a good apprentice and give your boss a blow job?" 

It was the first of several times she would do so while at work — mostly at the subforeman's request, she testified, and sometimes more than once a day.

She testified that she initially engaged in the activity in exchange for a sense of support and validation, but her perception changed over time as the one-sided nature of the relationship became clearer and the subforeman became less caring and kind. 

According to the decision the subforeman never returned the favour, saying during cross-examination that "he was a selfish lover and there was only so much one could do at work."

While both workers admitted to the oral sex, several other incidents were in dispute during the hearing, including an entire section in the decision titled "the anal sex incident."

The decision explains how that incident — which happened at the subforeman's home —  led the apprentice to realize she had been taking part in "an unbalanced relationship" that no longer felt consensual. She testified that the subforeman became gruff after she broke up with him.

But the subforeman testified the apprentice had been a willing and enthusiastic participant throughout the relationship, and had also initiated some of the sexual acts. 

Little evidence remaining

The arbitrator said he had little evidence to work from because the relationship took place five years ago. 

The decision says evidence like text messages and photos have since been deleted, leaving the arbitrator with mostly "he said, she said" evidence.

The arbitrator decided that the subforeman's sexual activity with the apprentice, especially while at work, was "outrageous misconduct" but consensual. The apprentice had initiated it, and although she later had regrets the arbitrator couldn't pinpoint any evidence that proved she had been coerced. 

As such, the arbitrator deemed it fair to fire the subforeman. But revoking his Power System Safety Certification, which would rule him out of even subcontractor work on BC Hydro systems throughout the province, was ruled as excessive.

Shortly after the end of the relationship, the apprentice went on sick leave and then returned to school. She never returned to BC Hydro, and decided she could never again work in a male-dominated workplace, the decision said.