Written on behalf of Peter McSherry
That decision was recently overturned on appeal, with the court holding that the employee’s conduct fit the definition of sexual assault, rather than sexual harassment, and his dismissal was thus justified.
Employee Terminated Following Workplace Incident
In January 2019, the male employee was fired from his job as a welder after he asked out a female co-worker and, later that day, touched her without her consent by lifting up her shirt. The employer claimed that it had a zero-tolerance policy prohibiting unwanted touching and terminated the employee for cause, without the benefit of a severance payment.
The employee commenced an action claiming wrongful termination and damages.
Lower Court Awards Damages for Wrongful Dismissal
The court held that the employee had engaged in intentional and non-consensual touching of his co-worker for a sexual purpose, which constituted sexual harassment. However, it found in favour of the employee, stating:
“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 RT, they fall at the low end of the “spectrum of seriousness”
[I]t 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.”
The court concluded that the employer should have issued a verbal warning in place of termination and awarded the employee general damages in the amount of $46,102, representing his income for ten months’ notice.
The employer appealed the decision. Its first ground of appeal was that the employee’s conduct constituted sexual assault, rather than sexual harassment, and thus justified his termination.
The Parties Make Submissions on Sexual Harassment vs. Sexual Assault
On appeal, the Court of Queen’s Bench of Alberta began by addressing both parties’ arguments relating to the characterization of the employee’s conduct.
While the employer argued that the employee had committed sexual assault, the employee submitted that it was sexual harassment, stating:
“[The employer] argues that [the employee] committed the criminal act of sexually assaulting [the co-worker], a legal conclusion not supported by the trial decision or the facts…. [The] case involved the brief, relatively private, isolated and inadvertent lifting of an undershirt.”
The employee therefore argued that the employer’s characterization of the incident as a sexual assault confused the criminal definition of sexual assault with the civil definition of sexual harassment and was not borne out by the evidence.
Court Finds That Employee’s Conduct Was Sexual Assault
In response to the employee’s argument, the court first noted that it ignored the fact that unwanted touching for a sexual purpose is the definition of sexual assault, whether on a criminal or civil level. While acknowledging that there can be varying degrees of sexual assault, the court stated that sexual harassment with a physical component amounts to the most serious forms of workplace misconduct.
In addition, the court took notice of a previous court determination which implicitly held that an actual physical assault or unwanted physical contact would escalate misconduct even further along the sexual harassment spectrum.
Thus, the court found that the proper characterization of the employee’s conduct was that of sexual assault.
Court Overturns Lower Court Decision
Having found that sexual assault, not sexual harassment, had occurred, the court held that the lower court’s analysis was incorrect.
Although the employer had raised two further grounds of appeal, the court held that because of its finding that the lower court had mischaracterized the employee’s conduct and therefore applied the incorrect analysis to the seriousness of the misconduct, it was not necessary to address them.
In the result, the court therefore allowed the appeal on the first ground of appeal raised by the employer and overturned the lower court’s finding of wrongful dismissal and award of damages.
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 Employment Lawyer 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.