Written on behalf of Peter McSherry
Sexual harassment is a serious offence and, in an employment context, can result in an employee’s termination.
However, in a 2021 Alberta decision, the court determined that one incident of sexual harassment did not constitute just cause for the termination of an employee.
Employee Terminated for Sexual Harassment
The employee worked as a welder for the employer in a facility in Alberta. The employer manufactures large tanks used in the oil and agricultural industries and typically employs between 30 to 40 welders, 10 office personnel and 5 sales people.
The employee had worked for 9.5 years for the employer and did not have any history of bad behaviour or conflict with any other employees.
However, in January 2019, an incident occurred that led to his termination.
On that day, he asked a female co-worker to go on a date with him, to which she responded “maybe”. A little later, the employee approached the co-worker and asked her if she was chilly and said “Now that you’re single we can go on a date”. He then reached over and lifted her hoodie and T-shirt, exposing the area of her body extending from her belly-button to her bra, including her bra.
The employee later explained that he did so in an attempt to flirt, but that he had not intended to lift her T-shirt when he lifted her hoodie.
However, the employee’s actions caught the co-worker by surprise, and caused her to be anxious, distressed and embarrassed, and to fear the employee. She quickly reported the incident to management and provided them with a written statement.
Shortly after the incident, the employee was sent home from work.
The next day, the employee was called in for a meeting in which he was confronted about the incident. The employee was told that the employer had a zero tolerance policy prohibiting unwanted touching as described in its company policies.
The employee was then told that his employment was being terminated for cause and that he would not be receiving any severance payment.
The employee went to court claiming wrongful termination.
Court Finds That Employee Was Wrongfully Dismissed
The court began by finding that the employee’s actions, even though brief and isolated, constituted intentional and nonconsensual touching of his co-worker for a sexual purpose (i.e. flirting). It held that his actions were unwelcome and had embarrassed and humiliated his co-worker, as well as detrimentally affecting her in her work environment. It further held that his conduct was “sexual harassment” as judicially defined and as defined in the employer’s policy.
While the court stated that there is no place for sexual harassment in the workplace or elsewhere, and that employers have a duty to protect all of their employees from that misconduct, it also noted that a finding of misconduct does not, by itself, give rise to just cause. The question becomes whether, in the circumstances, the employee’s behaviour was such that the employment relationship with the employer could no longer viably subsist.
The court then concluded:
“In the present case, [the employee]’s action constituted a single, brief and isolated incident of unwanted touching of [his co-worker], for the purpose of flirting with [her] in order to pursue a romantic relationship with her. Upon realizing that his advances were not welcome he did not persist, but immediately desisted and walked away.
While I do not discount the effect that his actions had upon [the co-worker], they fall at the low end of the “spectrum of seriousness”…
[The employee]’s actions constituted a clear violation of [the employer]’s policies designed to eliminate workplace harassment, including sexual harassment. Those policies are reasonable, clear and unambiguous.
[The employee] was aware of those policies, and he was aware that termination of his employment could result from his transgression of those policies. However, it is clear that [the employer]’s policies provide for other types of disciplinary action, and that summary dismissal was a possible but not a mandatory consequence.”
Additionally, the court considered the fact that the employee was not in a position of power with regards to his co-worker and that he had no record of any type of workplace harassment.
Finally, the court noted that the employer’s policies provided for verbal and written warnings and that summary dismissal was not a mandatory disciplinary action under the policies.
As a result, the court held that the employer had failed to meet its burden of proving that summary dismissal was a proportionate response to the employee’s transgression. It found that the employer had therefore failed to prove that there was just cause for termination of the employee’s employment.
The court therefore held that the employee had been wrongfully terminated and awarded him general damages in the amount of $46,102, representing his income for ten months’ notice.
If you feel that your rights have been violated, seeking the advice of an experienced and informed employment lawyer can help you understand your rights and your options to remedy the situation.
I have extensive experience and knowledge in handling cases on behalf of employees in a variety of industries. If you have been the victim of harassment and discrimination, I can help you evaluate your options and pursue the resolution that can best serve your interests and compensate for the pain and damages you have suffered.
At Peter A. McSherry Law Office in Guelph, I have represented clients in all areas of employment since being called to the Ontario Bar in 1997. When you work with me, you will meet and discuss your case only with me. I provide each of my clients with compassionate care, attentive service and the efficient resolution of legal issues. Contact me today to schedule an initial consultation by calling my office at 519-821-5465 or by e-mailing me. Harassment and discrimination cases are not to be taken lightly. Your rights deserve protection, and you deserve to work in a non-hostile work environment.