April 15, 2022
When is sexual misconduct by one employee against a fellow worker grounds for dismissal for cause?
This requires an analysis of the seriousness of the misconduct.
In most dismissal cases, a single, brief isolated incident of misconduct is not considered serious enough to warrant dismissal – it fails to meet the usual test of being inconsistent with the continuation of the employment relationship.
A recent Alberta decision, AG Growth International Inc. v Dupont, highlights that sexual misconduct is not like other misconduct. In that case, the incident involved the employee lifting the co-worker’s hoodie and t-shirt, exposing her upper body from the navel to her bra covered breasts. As the judge points out, this is not just sexual harassment, it is sexual assault.
As the Alberta Court of Appeal stated in a 2019 case, sexual assault is always at the serious end of the spectrum of misconduct. The presumptive penalty, subject to any mitigating factors, ought to be dismissal for cause, even for a single isolated incident.
That was the result in the Dupont decision as well.
Although this is an Alberta case, we believe that an Ontario court would apply similar standards. Employers have a positive and serious obligation to protect workers from sexual misconduct.
In recent years, courts have taken this much more seriously, as was confirmed in the result of our case of Colistro v. Tbaytel. That case did not involve sexual assault, but both a judge in Thunder Bay and the Court of Appeal viewed the treatment of the harassed employee with a lens that was extremely sympathetic to her situation, and ruled that the employer took insufficient steps to protect her in the future. She recovered significant damages for the employer’s insensitive conduct.
There are valuable lessons to be learned here:
- What could at one time be dismissed as horseplay or “fooling around” is no longer be tolerated.
- Courts will look at the effect upon the targeted employee, and not the intent of the wrongdoer.
- Employers must protect all employees, and in particular vulnerable employees likely to be targets.
- This starts with appropriate and up to date policies.
- Those policies must be announced, and enforced.
- In service education and training about the unacceptable nature of sexual misconduct may be part of a comprehensive strategy to conform to the employer’s obligations.
- If an incident occurs, it must be treated as serious, and the victim treated with sensitivity.
- This may require an impartial outside investigator.
- This may require that the victim be offered uncompelling or other accommodations. In determining what is appropriate, bear in mind that the sympathies lie in favour of the victim.
- A decision about the penalty for the misconduct requires timely and informed legal advice.
The employment law team at Weilers LLP has the experience and knowledge to assist employers with all stages of this process. If you have questions or concerns in this area, please contact us to discuss how we might help you.