The risks to employers in sexual harassment cases can be big. Potential liability can arise from any decision and employers may find themselves having to make tough 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 Alberta Court of Queen's Bench case, Watkins v Willow Park Golf Course Ltd.
Mr W was a golf course superintendent at the Willow Park Golf Course. During his 12-year employment, he had no discipline problems or warnings.
At some point, W developed romantic feelings for one of his subordinates, Ms L. When L rejected W's advances, he began a campaign of escalating behaviour to gain her attention. He repeatedly expressed love and affection for her, and sent her numerous personal and intimate text messages. He showed disproportionate interest in her and, at times, engaged in bullying behaviour.
No policies were in place regarding harassment or the need for a respectful workplace.
L eventually submitted a letter outlining her concerns to the managing committee of the golf course. In response, management met with W for one hour to allow him to respond to the allegations, which he denied. Management also spoke with other employees regarding L's concerns. However, the employer did not speak with L about her allegations until after it had taken action.
W was terminated for cause. He then sued for wrongful dismissal.
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 court held that summary dismissal was justified for the following reasons:
- W was 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 L's discomfort, W intensified his verbal and sexual harassment.
- L was economically dependent on the job. Therefore, W had significant control over her career aspirations.
Despite finding that summary termination was appropriate, the golf course's response to L's complaint was found wanting. The key points that concerned the court were as follows:
- W was not offered a reasonable time to respond meaningfully to the complaint. The court found that the one-hour meeting was insufficient.
- The employer did not speak to L regarding her complaint until after W had been 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 those who testified felt that they had been part of an official investigation. The seriousness of sexual harassment and any related investigation should be emphasised.
- While W's claim that the employer had condoned his behaviour was rejected, the fact that he argued this demonstrates the importance of making the employer's stance clear. A workplace safety and harassment policy could have been advanced as evidence against the condoning argument if such a policy had existed. Similarly, any prior warnings about W's behaviour could have been advanced, had they been issued.
Employers can learn from this case how to ensure that harassment claims are investigated appropriately and how to minimise the risk of liability if a harasser is terminated. This can be achieved through the following steps:
- Create and enforce workplace policies – it is important to have a policy in place that clearly states the employer's position on harassment and allows management to receive complaints effectively.
- Consider the use of warnings – issuing appropriately worded warnings 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 accused employee to respond meaningfully.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
For further information on this topic please contact Theodore Fong at Fasken Martineau DuMoulin LLP by telephone (+1 403 837 0610) or email (firstname.lastname@example.org). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.