What is it? In 1989, the Supreme Court said:
... sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is ... an abuse of power.
Janzen v. Platy Enterprises Ltd.
Sexual harassment is prohibited under all human rights legislation in Canada and employers have a duty to protect employees against sexual harassment in the workplace. This may, in certain circumstances, require dismissing an offending employee. Failing to protect an employee against sexual harassment by a co-worker may also lead to a constructive dismissal claim against the employer. For the purpose of this article, we look specifically at the issue of when an employee can be terminated for just cause when there is proven sexual harassment.
Courts have recognized that some forms of sexual harassment are more serious than others. The greater the severity of the harassment, the greater the likelihood of the court finding just cause. Courts also recognize that managers may be held to a higher standard than other employees due to the inherent "power imbalance" of their position when it comes to violating company rules such as sexual harassment policies. Managers are also expected to "set an example" for other employees. As in all "just cause" cases, courts look at the facts and circumstances closely. Generally, the following factors are used when courts consider whether there is just cause for sexual harassment:
- Was there unwanted or unwelcome conduct?
- Was the "offender" asked to stop unwanted or unwelcome conduct?
- Was there a power imbalance (i.e., manager, supervisor, etc.)?
- Did the employer condone the conduct?
- Has the employer lost trust and confidence in the alleged offender?
- Has the employer lost trust and confidence?
- Was a thorough investigation carried out?
If the answer to these questions are all positive, it’s likely that you have just cause to terminate. Where one or more of these questions are answered in the negative, just cause may be out of reach, but it will always depend on the particular case. The following are recent examples of how courts have handled wrongful dismissals where the plaintiff was allegedly guilty of sexual harassment.
Power imbalance and outrageous behaviour
Unwelcome conduct and abuse of power recognized by the Supreme Court in Janzen continue to be the two most important factors courts look at to determine whether there is or isn’t just cause. For example, In 2006 the New Brunswick Court of Appeal in Hall v. Boise Alljoist Ltd., 2006 NBCA 111 looked at an employer’s decision to terminate one of its top managers because he regularly harassed all of his subordinates. Mr. Hall’s conduct was described as:
...gross and gratuitous abuse of his power. He controlled the men under his supervision by screaming, swearing and threatening them, and he controlled the women by embarrassing and humiliating them. He confused bullying with leadership.
Mr. Hall’s behaviour, combined with the fact that he was a "manager" led the court to confirm the trial judge’s conclusion that there was just cause for termination.
In 2007, the Ontario Court of Appeal was also asked to review a trial court’s finding that the City of Hamilton had just cause to terminate a senior manager who persistently "stalked" a co-worker and attempted to have her fired after she broke off a romantic relationship with him. Ironically, the senior manager in that case was a solicitor who had been involved in drafting the city’s sexual harassment policy. This likely resulted in him being held to an even higher standard than ‘just a manager’ when he was found in violation of that policy. The full text of Menagh v. City of Hamilton escalated to the Ontario Supreme Court of Justice.
Not all sexual harassment has to occur where normal day-to-day work occurs. For example, in Simpson v. Consumers’ Association of Canada [2001 CanLII 23994 (ON CA)] the court said that after hours activity between a manager and employees may attract the scrutiny of the court when the circumstances warrant:
It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment. The determination of whether, in any particular case, activity that occurs after hours or outside the confines of the business establishment can be the subject of complaint will be a question of fact. In this case, the trial judge erred by making an overall finding without considering the individual circumstances of each incident.
In that case, Mr. Simpson was an executive director who was dismissed based on "several incidents of conduct which [the employer said] amounted to sexual harassment of female employees and created a sexually infused office environment". In that case, the unwelcome conduct occurred while the plaintiff and co-workers were at off-site board meetings and included an incident at a hot tub with a co-worker while at an off-site board meeting and another at an annual general meeting.
What about a warning?
Sometimes, harassment may not fall "at the serious end of the spectrum," but may still consist of unwanted conduct. When this is the case, courts have been less ready to find just cause without some form of progressive discipline. For example, in Dupuis v. Edmonton Cellular Sales Ltd. [2006 ABCA 283 (CanLII)], the Alberta Court of Appeal said a manager, who didn’t receive any warnings that his frequent ‘uncomfortable’ by not necessarily harassing touching of female employees on the shoulder or waist, should have been warned before he was summarily dismissed without reasonable notice.
What this means for employers
Employers must continue to implement and update sexual harassment policies for their specific workplace. Responsibility doesn’t end there. Turning a blind eye can be seen as condonation or acceptance of the behaviour by the employer and may leave the employer open to liability. If an employer receives a complaint of sexual harassment, it should conduct an investigation and determine whether, and to what extent, the sexual harassment is taking place.
An employer has a duty not only to the employees who claim harassment but also to employees who are accused of engaging in such behaviour. Completing a thorough investigation prior to taking any action will help to convince the court (should it be necessary) that any action up to and including termination was necessary and justified.
Sexual harassment can take many forms and may be directed by anyone at anyone. There’s no room for stereotypical assumptions. Don’t assume that, just because a man is complaining of sexual harassment by a woman that he’s making it up and it could not possibly be happening. And do not assume that, just because someone claims they’re being sexually harassed, it is unquestionably true. A proper investigation can go a long way towards determining what actually happened and what steps need to be taken (e.g., providing a warning or summary dismissal) to rectify the matter.
Have an anti-harassment policy and ensure there’s awareness of it by all employees. Also, let it be known that harassment of any sort is unacceptable in your workplace.