Arbitrator upholds just cause termination of grievor who masturbated in back of Uber
- Rika Sawatsky
- Dec 22, 2025
- 3 min read
A recent arbitration decision, SMWIA, Local 30 v Semple Gooder Roofing Corporation, upheld the just cause termination of a unionized employee for a single egregious incident: masturbating in the back of an Uber on the way to work.
This case provides important lessons for employers on misconduct standards, procedural fairness, and the need for trauma-informed approaches to assessing credibility in harassment investigations.
Key Takeaways for Employers
Training gaps are not a defense
The employer’s failure to provide complete harassment training was not fatal. The grievor knew, or ought to have known, that his conduct was inappropriate.
Investigation standards
The investigator’s failure to obtain the Uber’s video footage did not prevent the arbitrator from upholding termination. The employer took all reasonable steps to secure evidence, and witness testimony alone was sufficient.
Investigator neutrality
The case distinguishes Toronto Metropolitan Faculty Association v TMU. Here, there wasn't any evidence of the nature of the investigator's retainer (i.e. whether solicitor-client privileged and neutrality compromised), the grievor received procedural fairness, and the arbitrator was ultimately persuaded by the grievor's failure to provide a timely alternative explanation for what appeared to be masturbation.
Just Cause Termination Upheld
The employer had ordered the Uber for the grievor as part of his post-injury return-to-work entitlements. During the ride:
The grievor asked sexually harassing questions and made comments to the driver.
He then put his hands down his pants (witnessed by the driver), followed by fast, repetitive rubbing sounds.
Months later, the grievor claimed he was picking lint and adjusting clementines—an explanation rejected by the arbitrator.
The arbitrator found the driver credible and upheld the termination.
Gender Myths, Stereotypes, and Survivor Behavior
The union attempted to discredit the driver using gendered myths, such as:
Refusal to provide video footage
The driver chose not to produce the video footage after consulting her sister and deciding not to pursue redress—a common response of survivors who wish to avoid retraumatization. The union argued this implied fabrication.
Answering harassing questions
The driver answered some of the grievor’s sexually harassing questions despite initially denying speaking with the grievor at all. Again, the union argued this undermined credibility. However, trauma-informed research shows that responding to an aggressor is a survival mechanism and does not imply consent. Trauma can also affect recall and consistency in testimony.
Continuing the ride
The union questioned why the driver stayed in the Uber for 20 minutes after the misconduct began. But in reality, this made sense and falls within the freeze, fawn, or flight responses common to survivors and are known automatic trauma responses:
Freeze: Inability to act immediately due to fear or shock.
Fawn: Attempting to appease the aggressor to avoid escalation.
Flight: Planning or preparing to escape while managing immediate danger.
Understanding these behaviors is crucial for employers, arbitrators, and investigators assessing credibility in harassment cases. Misinterpreting these responses as consent, inconsistency, or obstruction is a gendered stereotype that has no place in workplace assessments.
Practical Lessons for Employers
Maintain clear standards of conduct, including off-duty behavior.
Ensure harassment investigations are trauma- and violence-informed, recognizing survivor responses such as freeze, fawn, or flight to avoid reliance on gendered myths and stereotypes when assessing credibility or evidence.
Interested in building a trauma- and violence-informed workplace harassment policy and program?
My approach is different from other lawyers. I focus on risks unique to your workplace, equip your employees with tools they can use in the moment, and integrate structural solutions to support the training. Please reach out to learn more. I'd love to speak with you.
