Arbitrator upholds NAIT's decision to fire instructor over sexual harassment of 3 workers
The Northern Alberta Institute of Technology (NAIT) was right to fire an employee who repeatedly sexually harassed three co-workers, an arbitrator has ruled.
© Codie McLachlan/CBCNAIT dismissed employee Dwayne Rurka in 2019 for sexually harassing colleagues. In January an arbitrator dismissed his union's grievance, upholding NAIT's decision.
Madeleine Cummings - Yesterday
NAIT fired Dwayne Rurka, a co-ordinator of evening and weekend programs in the School of Applied Sciences and Technology, on Aug. 19, 2019.
In Rurka's termination letter, NAIT said it had investigated and concluded that he had "repeatedly, and without consent, made unwanted comments and/or jokes to three employees that were sexual in nature, or had sexual connotations or undertones, while in the workplace."
The letter also said Rurka subjected two employees to "unwanted touching while in the workplace."
The NAIT Academic Staff Association (NASA), the union representing the school's more than 850 academic workers, filed a grievance on Rurka's behalf.
Following a hearing last year, arbitrator Greg Francis dismissed the grievance, saying NAIT's decision to dismiss Rurka was the just and reasonable response to his harassment of his colleagues.
"The evidence against the grievor is simply overwhelming," Francis wrote in a Jan. 19 decision.
Sexual comments
Rurka, who is 54 and lives in St. Albert, started working as an instructor at NAIT in September of 1998.
In May 2017, he became an evening and weekend delivery co-ordinator, which involved scheduling instructors, finding new instructors, purchasing and other duties.
NAIT argued at the hearing that Rurka, who was in a leadership position, had a pattern of sexual harassment for which he failed to accept responsibility.
One of NAIT's witnesses, a temporary employee who worked with Rurka, said he made inappropriate sexual comments to her at work, including remarks about her appearance.
She recalled him ogling her body, growling and saying, "God, I love you in that dress." She testified that she felt increasingly anxious each morning as she chose what to wear to work.
She would change three or four times while trying to select which outfit to wear, not wanting more ogling or comments.
The same witness said she was standing behind a desk counter when Rurka came up behind her and, without warning, wrapped his arms around her upper abdomen.
She testified that she felt shocked. A colleague mentioned that she looked uncomfortable with the hug. She testified that Rurka replied: "Why, because I'm the only man with big enough balls to hug her beside[s] her husband?"
After that incident, she confronted Rurka by email, privately copying the message to her superiors. NAIT soon launched an investigation into his conduct.
Other witnesses said Rurka often made sexual comments at work.
One woman, another temporary employee, said he put his hands on both sides of his crotch and said, "You couldn't handle this."
On several occasions, Rurka told her he wanted to date her daughter, the woman testified. She said he also said he wanted to have sex with her daughter.
Another colleague testified that Rurka had dry-humped her cubicle and once told her, "I would like to see you in nothing else but your boots."
She stopped wearing boots to work.
Francis wrote that there was a "compelling and consistent" harmony among the witnesses' stories.
He said they had all been friendly to Rurka and had acknowledged that he had redeeming qualities.
All were reluctant to challenge his behaviour because of his power and their own precarious employment.
'They're all wrong'
Rurka testified that the investigation process was unfair. He said there were no opportunities for restorative justice or an alternative form of dispute resolution.
He said he didn't want to offend anybody or make anyone feel uncomfortable and that he would have changed had he been confronted.
Emails presented in NAIT's evidence showed that when Rurka received his colleague's email about the unwanted hug, he apologized immediately, telling her he was deeply saddened to have caused her to feel uncomfortable.
He testified that he emailed her to try to fix things and wanted to maintain good relationships with his colleagues.
One of Rurka's colleagues testified that their department was "huggy," that multiple instructors had made off-colour comments without anyone objecting, and that she had not heard Rurka say anything inappropriate.
Rurka denied saying much of what the NAIT witnesses had alleged, including humping a colleague's desk and saying he wanted to have sex with a colleague's daughter.
He said he shook the desk because his colleagues had continued to talk, despite his asking them to be quiet. He said he couldn't recall commenting on anybody's boots.
Francis wrote that after a series of his denials during cross-examination, Rurka was asked, "So they're all wrong?"
Rurka responded: "I can't speak to how they interpret my remarks." When pressed, he said: "Yes, they're all wrong."
In his decision, Francis wrote: "I can appreciate [Rurka's] need to minimize, parse, and explain his words and actions, for to accept the version of the complainants would be to admit some truly despicable treatment of others in the workplace. But I cannot believe him when he does so."
Francis wrote that Rurka had been dishonest and he could only consider reinstating his employment had he accepted full or near-full responsibility for his actions.
Rurka 'devastated': lawyer
Rurka is devastated, angry and disappointed by the arbitrator's decision and NAIT's investigation process, Jim Fyshe, an Edmonton lawyer retained by NASA, told CBC News.
Key to NASA's argument was that the school did not follow its respectful workplace policy but instead conducted its own investigation. In his decision, Francis wrote that NAIT's failure to comply with the policy did not seriously detract from the fairness of its process.
Fyshe said that from Rurka's perspective, the process was unjust, in part because an investigator told him the policy would apply, and because the nature of the allegations did not justify his firing without a chance to change his behaviour.
"Mr. Rurka doesn't agree that he didn't take responsibility for the things that he acknowledged that he did, but it's challenging for him to apologize and take responsibility for things that he truly believes he didn't do," Fyshe said.
Fyshe said NASA has a duty to represent its members, but at the same time, the association understands and supports the need for respect in the workplace.
There is no appeal process for arbitration decisions, but unions may pursue a judicial review. Fyshe said NASA will not be doing so.
CBC News contacted four of Rurka's former colleagues this week about this story. Two declined to speak; the others have not responded.
A NAIT spokesperson said the school cannot comment on personnel matters but is committed to fostering a safe, respectful and inclusive work and learning environment free from harassment, bullying and violence.
