Workplace Sexual Harassment

Sexual Harassment as Just Cause

Ontario Court of Appeal Sets a New Day

The Ontario Court of Appeal imposed a new duty of management to ensure that the workplace was free from racist or sexist slurs or other objectionable conduct in its 1998 decision. 1 The trial judgment was reversed, in part, due to the failure to consider the duty of the supervisor who not only took no steps to eliminate such conduct, but, rather, participated in it.

In a second decision released contemporaneously,2 the court again found cause for dismissal in a case brought by a manager due to his sexual conduct towards a subordinate, once more overturning a successful trial award. The Court of Appeal determined that this was not a proper case to consider a warning, even though the defendant employer had no sexual harassment policy. The Court also noted that the trial judge should have paid heed to the impact of the offensive conduct on the victim in determining the proper response of the employer.

Change in Social Mores

Effectively the Court of Appeal in these two decision was cognizant of the workplace issues that women, and indeed men, have confronted in sexual harassment issues. It struck a new chord and marked a new era.

The Court of Appeal made a similar conclusion in a third decision in 2001, once again overturning a trial decision, in part because the trial judge did not pay heed to the nature of the plaintiff’s senior position and management responsibilities.3

The Court of Appeal was more than direct in the reflecting upon the need that judicial decisions reflect a new societal standard of workplace conduct:

It is my conclusion that the trial judge demonstrates in his reasons a complete lack of appreciation of the modern concept of equality of the sexes. He uses such expressions as “she gave as good as she got” and “it takes two to tango,” both catch phrases from another era.

These are considered watershed cases. Decisions which pre-date these cases should be read with caution as they may not be considered to be reliable. As noted by Madam Justice Topolniski in the 2007 Alberta Queen’s Bench decision of Foerderer v Nova, commenting upon such a pre-Bannister case, Brick v Bell, the result in a post-Bannister context would likely have taken a different turn.

One recent arbitral decision spoke strongly of the employer’s need to provide a safe work environment, particularly with reference to the recent amendments to the Occupational Health and Safety Act and it is submitted, although in an arbitral context, is reflective of a more strict approach to conduct of sexual harassment in a modern work environment.4

A recent decision of the Alberta Court of Appeal follows a similar pattern of rejecting past authorities as valid in the context of an arbitral decision. The grievance initiated from the dismissal of a worker due to allegations of a sexual assault in the workplace. The female co-worker had alleged that the grievor had “grabbed and squeezed her breast without her consent”, an assertion which was proven at the hearing. The arbitrator set aside the termination decision, ordered a nine month period of unpaid leave and ordered reinstatement.

This decision was judicially reviewed,which upheld the arbitrator’s decision as being within the range of reasonable outcomes.

This decision was, in turn, appealed to the Court of Appeal which set aside the arbitrator’s decision. This is an important result as it is rare for an appellate court to interfere with the results of a specialized tribunal such as a labour arbitrator, in view of the degree of deference given to such decisions.

The victim had proved a sexual assault, which had been unfairly characterized by the arbitrator as “lower end sexual harassment”. Such a finding of physical action “constitutes a form of sexual assault and is among the most serious form of workplace misconduct”. Indeed, sexual assault must be considered sexual harassment “in its most serious form”.

Notably, in addressing the issue of the reasonableness of the award, the Court noted the change in social context and differing current values to stress that reliance upon past arbitral decisions would not be reliable in today’s workplace expectations and indeed, may be grounds to find the decision as unreasonable, as was done in this instance:

Arbitral awards inevitably cite extensive arbitral jurisprudence. Following arbitral precedent may fortify the reasonableness of an arbitrator’s award. Conversely, failure to follow precedent does not necessarily make the award unreasonable. However, social context informs the application of arbitral precedent. Arbitrators must consider whether time and changing social values reveal precedents to be based on faulty assumptions about acceptable sexual conduct in the workplace.

[50]           For example, the arbitrator referred to the 1992 decision International Minerals. There, the grievor put his hand between the complainant’s legs and touched her genital area in a very deliberate fashion. The arbitrator reversed the employer’s dismissal of the grievor. The arbitrator also considered the 1993 case of Western Grocers that involved numerous instances of the grievor making sexually suggestive, if not appalling, comments towards the complainant as well as other offensive gestures and behaviours. The arbitrator substituted a short suspension for the grievor’s dismissal.  

[51]           These are but two examples of arbitral precedent that are incongruent with modern society’s view of acceptable conduct in the workplace. Reliance on such precedents may well make the award unreasonable.

This concept of a trend to determine acts of sexual harassment as being viewed more seriously in more recent years was one echoed in a recent decision5, noting that modern jurisprudence shows “evidence of a trend toward a decreasing tolerance for sexual harassment".

Other Examples of Stale Dated Decisions

Quite likely a case in which the court found that the plaintiff had “backed a female colleague against a wall and moved his hand down the side of her body from her shoulder to her waist”6 was not cause for dismissal would take a different turn today.

The court then reasoned that dismissal was not justified as the victim did not have a physical sense of danger and was not dependent on the plaintiff for her employment. The fact that it was nonetheless a criminal offence and clearly a violation of the Human Rights Code apparently was of no moment. The trial judge also found that the employer effectively was otherwise motivated to terminate as it “was ready to take up the fortuitous opportunity which presented itself”. It is difficult to believe that this result, decided in 1995, would follow today.

McKinley Test

The accepted method of determining just cause for dismissal in an allegation of sexual harassment involves an application of the accepted principles of contextual proportionality7.

The Graded Scale

As not every finding of sexual harassment will lead to a finding of just cause, a distinct set of qualifiers has been developed, which are in substance the same theory as above, adapted to a sexual harassment case.8

When this review is completed, the court will then “grade” the severity of the offensive behavior to determine if the questioned conduct has reached a level sufficient to merit termination without cause. As most common law dismissal cases present an all-or-nothing proposition, that typically is the sole issue presented for determination.

Conduct which is found to be sexual harassment must be viewed in the same purposive process9. To justify termination, the conduct must be “so serious it violated or undermined the obligations or faith inherent in the employment relationship”.

There will then be a scale of severity from the “innocuous joke with a sexual context” through to “sexual violence.”

The steps in the analysis then are:

  1. Determine the nature and extent of the misconduct;
  2. Consider the employee within the employment relationship: the employee’s age, employment history, seniority, role and responsibilities, the employer’s business or activity, relevant employer policies or practices, the employee’s position within the organisation, and the degree of trust reposed in the employee.
  3. Decide if the misconduct is reconcilable with sustaining the employment relationship by considering the proven (dishonest) acts, within the employment context, to determine if the misconduct is sufficiently serious that it would give rise to a breakdown in the employment relationship.

In reviewing the third component of this test, the court noted that McKinley10set out three measures:

(1) whether the dishonesty violated an essential term of the employment contract;

(2) whether it breached the faith inherent to the work relationship; or

(3) whether it was fundamentally inconsistent with the employee’s obligation to the employer.

The Ontario court added the following factors in the context of showing cause for termination in pleading conduct which is sexual harassment case:11

  • the nature and degree of the conduct;
  • whether the offending employee was told the impugned conduct was unwelcome or offensive;
  • continuation of the unwelcome or offensive behaviour after being advised that it was unwelcome;
  • the nature of the employment relationship between the offending employee and victim, particularly if the offending employee was in a position of authority over the victim;
  • the nature of the employment relationship between the offending employee and employer, including their length of service and position, and whether there were implied or express terms of the employment contract which gave rise to additional obligations on the employer’s part, such as warnings or the opportunity to respond;
  • whether any warnings had been given that the misconduct was inappropriate and that dismissal was a possible consequence of further similar misconduct;
  • the existence of a formal and known sexual harassment policy that was enforced by the employer; and
  • condonation of the behaviour by the employer.

One would also expect that the impact of the offensive behaviour upon the victim, viewed objectively, should be considered12.

The determination of where on the scale of gravity the proven offence may lie, will then, logically enough, impact the court as to whether termination, typically the only reason why the case is in court, was the correct level of discipline.

It was noted that a single event may be sufficient to lead to termination13.

There have been situations where sexual harassment has been found, yet also determined not to be of termination grade14.

The B.C. Court of Appeal reviewed this issue in its September 2023 decision. 15 The trial judge had found that the conduct of sexual harassment, as was found did occur, was not of sufficient grade to allow for termination with cause. 16 The employer’s appeal on the cause issue was dismissed.

One fact finding at trial was that the employer did not choose to terminate initially, but rather allowed the plaintiff to continue his employment provided that he admit his wrongdoing.  This was referred to as “remediation” conduct in the Court of Appeal. The employer had argued that from a policy perspective that such conduct should be encouraged, as opposed to being used against the company to defect from its cause allegations. The Court of Appeal agreed that this should not be interpreted as an admission of “no cause”, yet remained a factor to be considered in the analysis of just cause. One factor, thus, was whether the employer viewed the context as being reparable:

In my opinion, it was open to the judge to consider, as one contextual factor in assessing the gravity of the misconduct, whether the employer viewed the relationship breakdown from the outset as either irremediable or salvageable should the employee take responsibility, express remorse, apologize, or in some other manner make amends.

[36]      I hasten to add that the context includes consideration of whether the employer’s efforts to effect a remedy are thwarted by the employee or prove for some other reason to be unachievable. To repeat, a judge should not in general consider the employer’s willingness to remediate as determinative of the gravity and sufficiency of the underlying misconduct. The employee’s willingness or lack of willingness to engage in remedying the misconduct will be a significant factor, as will the ultimate success or failure of such efforts. Remorse and an apology can in some circumstances mitigate the misconduct and restore the relationship. Without that successful remedial action, the unmitigated misconduct, standing alone, may well be so corrosive as to break the employment relationship and justify dismissal.

The Court of Appeal agreed that the trial judge had applied the correct analysis of Alleyne and Brazeau, as referenced above, to assess whether the misconduct was sufficient to allow for termination for cause.

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”. Cho, the plaintiff, was then given an affidavit to sign which he refused to do, as the language depicted him as a sexual offender. At the time, Ms. Lee had indicated her intent to report this incident to the police. The trial judge declined to see this refusal as unreasonable conduct.

The intention of the wrongdoer was also an issue. The trial judge had found that this conduct was an error of judgement as opposed to bad faith conduct. The Court of Appeal agreed with the employer’s submission that the severity of a sexual harassment claim does not depend upon the intent of the wrongdoer, however, continued to state that remains this is relevant for a just cause defence.

The trial judge found that this conduct was on the lower end of the spectrum, a position with which the Court of Appeal agreed. This court also agreed that in this context, a warning would have been appropriate.

It does seem incredulous that a warning that such conduct is not be tolerated would be required. Surely, every human being knows that such conduct is not acceptable. This may be, perhaps, seen as a first step of discipline, as the court is faced with a binary choice. This is pure speculation.

The Ontario Court of Appeal, in October of 2021, set aside the decision of the trial judge who had found for the plaintiff, a person accused of sexually harassing conduct. 17 The plaintiff had been admonished by the employer for making vulgar and sexually inappropriate remarks. He had been offered remedial training and the right to continue employment provided that he apologize to the person whom he had offended. He refused to do so and was terminated for cause.

The Court of Appeal applied the test as set out in McKinley and found that the termination was justified. This was an unusual decision to set aside the trial judge's finding to the contrary. The identical reasoning also prevailed in the same court in Bannister, Gonsalves and Simpson. In each instance, the appellate court set aside a trial finding in favour of the plaintiff facing sexual harassment allegations and found for the employer.

Workplace Policy

The court in Alberta18found that the employer had the obligation to prove that its internet usage policy and the anti-harassment policy were enforceable, an onus which it met as such were “reasonable, unambiguous, well published, consistently enforced and that the plaintiff knew or ought to have known of their content, including the consequences of their breach”.

The trial judgment in Simpson v CAC spoke of the role of the policy to educate the work force as to what conduct is not acceptable.

All Canadian jurisdictions now mandate these workplace policies. Regardless of whether they are compulsory or voluntary, such policies are excellent business tools to educate and enforce a safe work environment.