Understanding the Spectrum of SEXUAL HARASSMENT IN THE WORKPLACE IN ALBERTA
INSIGHTS FROM CAFÉ LA FORET LTD. V. CHO (2023 BCCA 354)
In a recent legal precedent, Café La Foret Ltd. v. Cho (2023 BCCA 354) shines a light on the intricacies of addressing workplace misconduct, specifically navigating the spectrum of sexual harassment. The case not only underscores the importance of context but also examines how employers must carefully assess the severity of employee misconduct before deciding on termination.
The Incident and Admission
The crux of the matter revolved around an employee who had touched a co-worker on the arm, shoulder, and buttocks without her consent. The employee admitted to these actions when confronted by the employer. At this point, he offered either an apology or his resignation. However, during subsequent legal proceedings, the employee denied touching his co-worker on the buttocks.
The trial judge, crucially, determined that the relevant date for assessing the cause for dismissal was the date of termination. At that time, the employer believed the employee had fully admitted to the misconduct, making dishonesty an unreliable basis for termination. The Court of Appeal supported this conclusion, emphasizing the importance of understanding the context in which admissions are made.
Reconciliation Efforts and Employment Relationship Preservation
Another significant aspect of the case involved the trial judge’s consideration of the employer’s willingness to reconcile the parties and preserve the employment relationship. This factor played a role in evaluating whether the employee’s misconduct warranted termination. The court found no error in this consideration, highlighting the importance of employers actively engaging in reconciliation efforts before taking drastic steps.
The Spectrum of SEXUAL HARASSMENT AT WORK
Perhaps the most notable aspect of the judgment was the court’s refusal to overturn the conclusion that the sexual harassment in this case fell “on the lower end of the spectrum.” The court characterized the employee’s actions as a “gross error of judgment” rather than indicative of bad faith intentions.
The judgment emphasized that the overarching question in a wrongful dismissal claim is whether the misconduct fundamentally undermines the employment relationship. While intentional improper touching for sexual gratification is serious, the court clarified that the intention of the perpetrator is only part of the context. It doesn’t determine whether the conduct constitutes sexual harassment or alter the severity of the harassment. Instead, it forms a component in assessing the overall behavior concerning the salvageability of the employment relationship.
Implications for the Workplace
Café La Foret Ltd. v. Cho serves as a poignant reminder for employers to carefully assess the context, severity, and intentions surrounding incidents of workplace misconduct. Understanding the spectrum of sexual harassment is essential for making informed decisions about the appropriateness of disciplinary actions and terminations. By actively engaging in reconciliation efforts, employers can contribute to the preservation of the employment relationship, fostering a workplace culture that addresses issues effectively while considering the potential for rehabilitation and growth.
Author: Shikha Shukla
