Sexual Harassment Analysis Clarified by Top Court

By Daniel Standing, LL.B., Content editor, Frist Reference Inc.

A recent wrongful dismissal decision of the British Columbia Court of Appeal, 2023 BCCA 354, sheds significant light on the factors that can rightly be considered when assessing whether conduct amounting to sexual harassment provides just cause for termination, and the legal viability of a global award of damages. The decision is helpful to employers who might otherwise be tempted to take the complainant’s side and obtain an apology from the alleged wrongdoer.

Background

The incident leading to dismissal happened between two Korean-speaking employees of a Vancouver caf -a 60-year-old male head baker and a 30-year-old female assistant baker. One day at work, the man told the woman about a therapeutic massage he’d received. While discussing the pain in his lower back, he lightly tapped her left shoulder and patted her upper back, and he lightly tapped her in the buttock area. The incidents were captured on CCTV footage.

The employer investigated what happened and told him not to come back to work. It had its lawyer prepare an affidavit for the man to sign, claiming it was an apology letter. When he refused to sign it, the employer issued a record of employment simply claiming dismissal.

However, the trial judge found that of the three grounds for termination, the company could only establish that sexual harassment had taken place. The other grounds, namely, the man’s dishonesty during the investigation, and his unwillingness to apologize or show remorse, were not proven. This prompted the employer to appeal, alleging various errors on the judge’s part.

The appeal decision

After dismissing several grounds of appeal alleging misunderstood facts and arguments, the court focused on the employer’s contention that the trial judge considered irrelevant factors in determining whether just cause for termination existed.

First, it agreed with the employer that an employer’s willingness to try and preserve the employment relationship by prompting an apology shouldn’t be held against the employer as somehow showing the conduct was less serious. Rather, the court said, assessing just cause for dismissal demands looking at the entire context. An apology could sometimes mitigate the conduct, it said, but the employer’s willingness to mediate doesn’t determine how serious the misconduct was.

For the trial judge, the employer’s willingness to work toward an apology was but one of many factors it considered in overturning the dismissal. The Court of Appeal recognized the judge also noted the established misconduct was relatively minor, and that the woman’s distress was partially due to her being upset over not being allowed to eat a meal earlier in the day.

There was also good reason for the employee not to sign the affidavit: It made him out to be a sexual offender, it was drafted for legal rather than reconciliatory purposes, it contained factual errors and would have precluded him from working at the caf , except alone, which was impossible. In short, there were various factors the trial judge relied on in assessing the sufficiency of just cause; the ongoing viability of the relationship wasn’t the only one.

The Court of Appeal gave more guidance for sexual harassment cases: It said the intention of the perpetrator doesn’t determine whether the touching amounts to sexual harassment or alter its severity. But intention does play a role, it said, in determining where on the spectrum of improper physical touching the incident falls. The court refused to tinker with the judge’s factual findings on appeal. As the case fell on the less serious end of the spectrum, it determined the judge made no error in considering the employee’s age, position and length of service in assessing just cause and asserting that the employer had a duty to warn the employee or provide an opportunity for the employee to respond.

The trial judge didn’t completely escape unscathed, however. The Court of Appeal said she was wrong to have considered the quick reporting of the incident as being relevant; however, this was said to be an immaterial error, since the judge gave it less weight than it did other factors.

Also, the judge erred in conflating aggravated and punitive damages by issuing a global award. Since these two types of damages serve different purposes-compensatory and punishment, respectively-they must be assessed separately. In this case, the Court of Appeal was content to maintain the $25,000 award under the sole head of aggravated damages because of the way the employee was terminated. Although it didn’t involve bad faith, the employer effectively acted as the complainant’s agent by trying to obtain from him an admission that would have been prejudicial. With those amendments in place, the balance of the trial judge’s decision was upheld.

Key takeaways

Trying to get employees back on the same page, working together after an incident like this might be a laudable goal, but the employer needs to maintain some objectivity and avoid becoming the complainant’s agent.

The employer in this case seems to have taken a categorical approach to sexual harassment, concluding that it merits termination. Perhaps a better approach would have been to analyze the situation contextually and if, as here, the misconduct was relatively minor, deal with it in a less drastic way.