In previous posts, we discussed instances where courts have upheld sexual harassment as just cause. However, although the courts in those cases took strong stances against harassment, not every incident of sexual harassment will be considered just cause. Ultimately whether sexual harassment amounts to just cause will depend on the factors in each case.
In Cho v Café La Foret Ltd., 2022 BCSC 1560, the court found that the plaintiff sexually harassed a subordinate by touching her in two separate instances, once on her shoulder and upper back and then on the buttock on another occasion. The plaintiff explained that he was trying to describe a therapeutic massage he had received and a pain that he was experiencing in his low back to his female subordinate. Nevertheless, the touching was found to be unwanted, inappropriate, and having sexual connotations. After an investigation, the employer asked the plaintiff to sign an affidavit in which he had to call himself a ‘sexual offender’. When the plaintiff refused to sign it, the employer terminated his employment for just cause.
The court found that the harassment did not constitute just cause for the following reasons:
- On the spectrum of workplace harassment, the misconduct was relatively moderate.
- The plaintiff offered to apologize to the victim or to quit.
- The plaintiff was not warned prior to the incident that dismissal was a possible consequence of their misconduct.
- The plaintiff was not provided with an opportunity to respond to the allegations.
- The victim stated that, despite everything, she believed that she could work together with the plaintiff if he signed an apology letter.
- The employer, after an investigation, decided not to terminate the plaintiff. Rather, it took the position he could keep his job if he signed the affidavit admitting his guilt.
The court found that the employer’s actions following its investigation contemplated the plaintiff could remain employed, indicating that the harassment itself was not sufficiently serious to end the employment relationship for just cause.
The refusal to sign the affidavit was also not just cause. It was materially different from an apology letter and was designed to be used for legal purposes potentially to incriminate the plaintiff in relation to criminal charges. It contained factual errors and conditions that would have made it impossible for him to perform his job.
Takeaways for Employers
This case contains some valuable lessons for employers to consider when managing allegations of sexual harassment:
- Have a policy that addresses sexual harassment and which indicates that violation of the policy could result in discipline up to and including termination. Ensure that employees are aware of the policy and trained on it. Having a broader bullying and harassment policy (which also covers sexual harassment) and providing training on it is specifically required in B.C. by WorkSafe regulations.
- Conduct a fair investigation into harassment allegations, during which alleged harassers should be given an opportunity to respond to the allegations.
- Do not fire employees for refusing to sign legal statements or affidavits.
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