Workplace Sexual Harassment

Need for a Warning ?

 

The need for a warning typically in common law cases has often been seen as necessary to clarify exactly the level of conduct which is expected by the employer.

This could arise in many ways, but generally the main theme that emerges is that fairness requires some advance notice of the need to improve upon the questioned conduct where the conduct is culpable or non-culpable.

One example is where the apparent conduct has been permitted to exist when all parties would agree, that absent such acquiescence, it ought not to be tolerated or is contrary to some published policy document.

Hence, the standard of conduct exhibited by an employee or a group has fallen below the expected norm. It would be considered unfair for a company to hence precipitously assert the higher norm as grounds for termination.

This makes some degree of sense as it would be inherently unfair to take action based on the passively acquiesced lower level of performance. It is, in this sense, akin to an estoppel. The argument would proceed – well, you let me by your conduct believe that it was acceptable to relate sexually offensive jokes, or as the case may be. On these facts or similarly themed, the employer should issue a statement warning all concerned that the expected standard is indeed to be enforced.

Such a warning would not be required to be given to the senior manager who has been charged with the enforcement of the policy or the need to provide a safe work place.

Other examples may involve non-culpable performance issues where the employer should be required to let the employee know that his apparent inability to do the job may result in discipline or other sanctions.

In certain situations of culpable conduct, it is a universal truth that specific actions are wrong and require no warning. Theft is an obvious example. Even situations where others or senior management participate, such conduct requires no roadmap1.

Whether an employer is obliged to provide an employee with a clear and unequivocal warning and opportunity to improve depends on the circumstances and the quality of the misconduct: “the greater the wrong, the less likely it is that an employer will be required to first put the employee on notice that such misconduct is not acceptable to the employer”.2

Where might sexual harassment fit within this dimension?

One might expect that level one harassment, such as sexual jokes, bantering, non-physical teasing may fit into the “this is apparently acceptable behaviour” context and require admonition with or without a policy in place where the policy is seemingly disregarded and it is not the manager who is accused of the wrongdoing or permitting the wrongdoing.3 4

The opposite end of the spectrum of unwanted touching, promises of employment gains in a trade for sexual favours and the like surely require no warning or policy document. It is a given, a universal truth, that such conduct is fundamentally wrong and termination will follow. A warning would serve no rational purpose.5

The mid-range cases remain doubtful. Given a modern context, one would expect a more severe attitude to promote a safe workplace and that the court would react harshly to such offenders and disregard the need for a warning.

Many cases have that where a warning was required, the policy document satisfied this requirement. 6 These cases did not have arguments raised that the policy document was not uniformly enforced.

The court in the 2013 decision of Clarke v Syncrude came to the same conclusion that not only a warning was not required, but also that one event could give rise to termination for cause. 7 The need for a warning appears redundant in the context of the present state given the mandatory implementation of a policy manual on such an issue. A warning, at best, would be intended to provide clarity of the expectations of conduct in the workplace. Surely, the policy manual does just that. In one case the manager’s attempts to endear himself to the employee were rebuffed, as a consequence of which he took certain retaliatory action. The trial judge found these factual conclusions put the case in the mid-range of the gravity spectrum of a sexual harassment defence and further found that these facts required a warning to the plaintiff, notwithstanding prior admonitions and a policy in place which spoke against such actions as forbidden. The manager had also attended a sexual harassment training course at company expense.

This reasoning seems stale-dated in a modern context.8 The dissent noted below appears forceful and logical.9

Often dissents which are powerful take on such an emphatic view in later years that proves the logic of the reasoning. Ironically, the authority often quoted as the test for just cause, as set out below, itself is a dissent:

If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.

These famous words of Schroeder J. A. in Port Arthur Shipbuilding did not then carry the day in the Court of Appeal. This is also reviewed here. 10

All this being said, the B.C. Court of Appeal concluded that a warning was the most appropriate conduct in the case of an employee found to have committed conduct of sexual harassment, yet at the lower end of the scale of gravity, in its September 2023 decision. 11

The actual facts showed that the plaintiff’s conduct consisted of a “brief light tap on Ms. Lee’s right shoulder, followed by a brief open hand pat to her upper back, and a subsequent light tap on Ms. Lee’s buttock”. It is hard to imagine why a warning that such conduct is not acceptable would be required.

Time will inevitably be the test.