Will SEXUAL HARASSMENT always lead to dismissal for cause in Alberta?
For employers, allegation of sexual harassment by one employee towards another is always a matter of serious concern. It involves abuse of economic and sexual power, creating an unsafe place of work for employees which may deserve serious disciplinary action or even dismissal in Alberta.
However, not all instances of sexual harassment automatically justify termination for cause. There is a range of misconduct, and understanding the nuances is crucial for employers seeking to mete out appropriate discipline.
The Spectrum of SEXUAL HARASSMENT AT WORK IN ALBERTA
Sexual harassment can range from less serious verbal misconduct to more severe forms involving non-consensual physical contact. At one end, there can be acts like abusive jokes, suggestive words, and crude gestures. At the other end lies non-consensual touching, rubbing, forced kissing, or fondling. The severity of the conduct plays a crucial role in determining the appropriate disciplinary action.
For less serious forms of sexual harassment, a proportional response is required, with a warning preceding termination. This approach aligns with the idea that the punishment should match the severity of the offense. Repeated instances of less serious misconduct can escalate to a level justifying dismissal, but a single serious event may warrant immediate termination.
Courts draw a clear distinction between serious forms of harassment involving improper physical contact and less serious forms involving verbal comments, jokes, or gestures. Instances of harassment with a physical component are often seen as more severe, resembling a form of sexual assault.
However, the severity of the physical conduct alone does not necessarily mandate summary dismissal. The circumstances surrounding the incident, along with other factors, must be considered when determining the appropriate discipline.
Warnings and Dismissal in Alberta
In less serious instances of sexual harassment, a warning is generally required before termination. Employees must be made aware that such behavior is inappropriate and that a repetition could lead to dismissal.
On the other hand, for more serious forms of harassment, a warning may not be necessary, and immediate dismissal may be justifiable. The distinction between severity levels ensures that the response aligns with the gravity of the misconduct.
A recent Court of Appeal case from British Columbia shows how severity of the action is relevant to the kind of disciplinary action that an employer is entitled to take. In Café La Foret Ltd. vs. Song Hwan Cho 2023 BCCA 354, the Court of Appeal considered an appeal by the employer from a judgment of the Supreme Court of British Columbia finding that the employer had wrongfully dismissed the employee.
In that case, the employee lightly tapped the complainant on her left shoulder, upper back, and the buttock area to discuss the pain in his lower back. The employee investigated the matter where the employee admitted to touching the complainant but did not have any sexual intention. The court found that the actions were not sufficient to justify termination for cause. The Court’s reasoning was as follows:
(i) The act of sexual harassment was on the minor end of the spectrum;
(ii) The employee was willing to sign an apology letter which the employer did not accept;
(iii) The employee was not terminated right after the investigation which suggested that the employment relationship had not been irreparably broken.
While sexual harassment is never to be taken lightly, the law recognizes a spectrum of misconduct that requires a nuanced approach to discipline. Employers must consider the severity of the conduct, the presence of a non-consensual physical component, and the principles of progressive discipline and proportionality.
By understanding these legal nuances, employers can navigate the complexities of sexual harassment cases, ensuring fair and just treatment for all parties involved.
If you are an employer dealing with a complaint of sexual harassment, or an employee accused of sexual harassment and would like to understand your legal rights and obligations, please contact Osuji & Smith Alberta Employment Lawyers
Author: Imtiaz Hafiz
