Sexual harassment claims can arise quickly, without warning. Employers may then find themselves having to make significant decisions on tight timelines.
The key to ensuring an appropriate response is to be prepared. Preparation will permit an employer to take a proactive approach, as opposed to a reactive stance, when sexual harassment is discovered. This is a lesson that can be drawn from the recent Alberta Court of Queen's Bench case of Watkins v Willow Park Golf Course Ltd.
Mr. W was a golf course superintendent at the Willow Park Golf Course. During his 12 years on the job, he had never had any discipline problems. Not even any warnings.
At some point, W developed romantic feelings for Ms. L, one of his subordinates. When Ms. L rejected W's advances, he began a campaign of escalating behaviour to gain her attention. He continually expressed love and affection for her. He sent her numerous personal and intimate text messages. He showed disproportionate interest in her. At times, he engaged in bullying behaviours.
There were no policies in place about harassment or the need for a respectful workplace.
Ms. L eventually submitted a letter about her concerns to the managing committee of the golf course. In response management met with Mr. W for an hour to allow him to respond to the allegations. He denied them. Management also spoke with other employees regarding L's concerns. However nobody spoke with Ms. L about her allegations until after the employer took action.
Mr. W was terminated for cause. He then sued for wrongful dismissal. The case went to trial.
Whether summary termination is justifiable depends on the facts. The question is whether, in the circumstances, the conduct violates an essential condition of the employment contract, is fundamentally inconsistent with the employee's obligations to the employer, or destroys the mutual faith necessary for the employment relationship.
In this case, the trial judge decided that summary dismissal was justified because:
- Mr. W was Ms. L's senior supervisor. As such, he had a duty to create a safe workplace environment;
- There was a long history of serious hostility and sexual harassment. Despite being aware of Ms. L's discomfort, Mr. W intensified his verbal and sexual harassment; and
- Ms. L was economically dependent on the job. Mr. W had significant control over her career aspirations.
The Golf Course's Response
Despite finding that summary termination was appropriate, the golf course's response to Ms. L's complaint was found wanting. The key points that concerned the trial judge included:
- Mr. W was not offered a reasonable time to meaningfully respond to the complaint. The Court found that a one hour meeting was not sufficient.
- The employer did not speak to Ms. L regarding her complaint until after Mr. W was terminated. This should have been done beforehand. It contributed to the court's finding that the golf course had failed to conduct an adequate investigation.
- While the employer interviewed several employees, none of the employees who testified felt that they had been part of any official investigation. The seriousness of sexual harassment and any related investigation should be emphasized.
- While Mr. W's claim that the employer had condoned his behaviour was rejected, the fact that he made that argument demonstrates the importance of making clear the employer's stance. A workplace-safety and harassment policy could have been advanced as evidence against the condonation argument, had such a policy existed. So too with any prior warnings about such behaviour, had they happened.
Lessons For Employers
Employers can learn from this case about how to ensure that harassment claims are investigated appropriately, and how to minimize risk of liability if you terminate the harasser.
- Create and enforce workplace policies. It is important to have a policy in place which clearly states the employer's position on harassment and which allows management to effectively receive complaints.
- Consider the use of warnings. Issuing appropriately worded warnings, when appropriate, for less serious forms of harassment can help to avoid the argument that the employer condones such conduct.
- Investigate complaints thoroughly. When complaints are received, it is important to conduct a thorough and proper investigation. Interview the complainant and the person against whom the complaint is made, as well as other potential witnesses. Provide a reasonable opportunity for the employee about whom the complaint is made, to meaningfully respond.