Blaming Victim of Sexual Harassment Not a Good Defence

Written by Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.

In January 2024, a British Columbia labour arbitrator had no hesitation concluding that an employee, who was the grievor accusing a female colleague of sexual harassment in this case, was actually the one who was sexually harassing the female colleague. Simply put, the arbitrator found that the grievor’s evidence was not credible, the female colleague’s account was credible and consistent with the evidence, and the female colleague did not do what the employee accused her of. As a result, the labour arbitrator agreed with the employer that the grievor filed a knowingly false complaint against the female colleague and the employer had just cause for discipline. The grievor’s termination grievance was dismissed.

What happened?

The employee was a regular full-time faculty member with the employer. He filed a sexual harassment complaint against a female colleague, accusing her of doing things that allegedly happened two years earlier. More specifically, the employee argued that the female colleague propositioned him for sex, tried to kiss him while they were in the car, brushed her breast against his arm and then finally kissed him on the mouth without consent.

The female colleague was a new employee. She denied all of the accusations against her and told a different story where she was made to feel uncomfortable around the employee, and the employee’s conduct was so upsetting that she asked to be relocated from the office they shared on campus to another location.

The employer hired a third-party to investigate the matter. Afterwards, the employer accepted the findings in the report and terminated the employee since his accusations were found to be false, made in bad faith and made in a distorted manner.

The labour arbitrator asked whether the employer had met its onus of showing just cause for the termination. This was made challenging since there were diverging accounts of the six months of interactions between the employee and his female colleague.

The arbitrator noted that, according to the employee, the female colleague called him cute, commented on his clothing saying they were sexy, and called him vagina bait. He also said that she tried to kiss him when they were in her car, brushed against him and eventually planted a non-consensual kiss on his mouth. In his complaint, he stated that he was not looking for retribution; he just wanted the situation put on record because he wanted to safeguard his career. He pointed out that the female colleague was part of a hatefest against him.

Contrastingly, the female colleague stated that nothing that the employee argued was true. She wanted to make a good impression as a new faculty member with the employer so that she could secure a permanent role. She was stressed, and the employee called her cute, the relationship was weird, his comments were over the top and she felt manipulated by him. The employee was not well-liked in the department, and he made her feel uncomfortable. She did not say anything to her employer right away because she did not want to make any waves as a new employee. Also, she did not have anything tangible yet to bring to the employer. She did not like that he asked her personal questions such as asking about her oral hygiene, which she thought was disturbing. She asked for advice from people who could help her (this was confirmed by Email records). Ultimately, she felt that she had no choice but to ask for a relocation to another place on the campus.

According to the employer, the female colleague gave testimony that was credible-unlike the employee’s evidence. In fact, the employer relied on her evidence when deciding to terminate the employee. Further, the employer argued that, regardless of the reasons why the employee fabricated the story, the employee persisted with the false story and his bad faith allegations without remorse or regard for the negative impact on the female colleague.

What did the labour arbitrator decide?

The arbitrator found the following:

• The employee’s testimony was not credible given his inconsistencies and embellishments, and also his verbose modifications during cross-examinations. The employee was evasive during questioning and he gave convoluted responses.
• The female colleagues’ evidence was genuine and forthright, which was reasonable in the circumstances. She gave clear and concise explanations and answered questions directly.
• It was more likely than not that it was the employee who initiated conversations that were sexualized-not the female colleague
• Whether we are talking about what transpired in the office or the car, it was clear that the employee’s evidence was inconsistent and implausible. Taking a holistic view of the evidence, I find it more likely than not that the nature of the relationship between the [female colleague] and the [employee] was not that of a female colleague engaging in sexually suggestive conduct and kissing the [employee] without his consent, as alleged in the Complaint. I find the [employee’s] evidence, and his allegations against the [female colleague] place too great a strain on one’s sense of the realities of life and clash with the preponderance of probabilities disclosed by the surrounding circumstances.

Accordingly, the employer could show that the employee filed a knowingly false complaint against the female colleague and it had just cause for discipline. To that end, the employee’s grievance was dismissed.

What can we take from this case?

As can be seen in this case, it will eventually come out via investigations and hearings that an employee made up a sexual harassment complaint. Employers are recommended to address this issue of employees creating fictitious claims against coworkers in their anti-discrimination and anti-harassment policies. Along those lines, the issue should also be addressed during training sessions with employees so that it is clear that making up complaints in a dishonest manner will not be tolerated, and the policy will be enforced against employees with discipline up to and including termination.

Source: 2024 CarswellBC 211.