Avoiding liability risks when you fire a sexual harasser

November 05, 2017 - by: Theodore Fong 0 COMMENTS

by Theodore Fong

The risks to employers in sexual harassment cases can be big. Potential liability can arise from any decision. Employers may then find themselves having to make tough decisions on tight timelines.

The key to ensuring an appropriate response is to be prepared. Preparation will permit an employer to take a proactive approach, as opposed to a reactive stance, when sexual harassment is discovered. That is a lesson that can be drawn from the recent Alberta Court of Queen’s Bench case of Watkins v. Willow Park Golf Course Ltd.

Facts

Mr. W was a golf course superintendent at the Willow Park Golf Course. During his 12 years on the job, he never had any discipline problems. Not even any warnings.

At some point, W developed romantic feelings for Ms. L, one of his subordinates. When L rejected W’s advances, he began a campaign of escalating behavior to gain her attention. He continually expressed love and affection for her. He sent her numerous personal and intimate text messages. He showed disproportionate interest in her. At times, he engaged in bullying behaviors.

There were no policies in place about harassment or the need for a respectful workplace.

L eventually submitted a letter about her concerns to the managing committee of the golf course. In response management met with W for an hour to allow him to respond to the allegations. He denied them. Management also spoke with other employees regarding L’s concerns. However, nobody spoke with L about her allegations until after the employer took action.

W was terminated for cause. He then sued for wrongful dismissal. The case went to trial.

Summary termination

Whether summary termination is justifiable depends on the facts. The question is whether, in the circumstances, the conduct violates an essential condition of the employment contract, is fundamentally inconsistent with the employee’s obligations to the employer, or destroys the mutual faith necessary for the employment relationship.

In this case, the trial judge decided that summary dismissal was justified because:

  • W was L’s senior supervisor. As such, he had a duty to create a safe workplace environment;
  • There was a long history of serious hostility and sexual harassment. Despite being aware of L’s discomfort, W intensified his verbal and sexual harassment; and
  • L was economically dependent on the job. W had significant control over her career aspirations.

Golf course’s response

Despite finding that summary termination was appropriate, the golf course’s response to L’s complaint was found wanting. The key points that concerned the trial judge included:

  • W was not offered a reasonable time to meaningfully respond to the complaint. The court found that a one-hour meeting was not sufficient.
  • The employer did not speak to L regarding her complaint until after W was terminated. This should have been done beforehand. It contributed to the court’s finding that that the golf course had failed to conduct an adequate investigation.
  • While the employer interviewed several employees, none of the employees who testified felt that they had been part of any official investigation. The seriousness of sexual harassment and any related investigation should be emphasized.
  • While W’s claim that the employer had condoned his behavior was rejected, the fact that he made that argument demonstrates the importance of making clear the employer’s stance. A workplace-safety and harassment policy could have been advanced as evidence against the condoning argument had such a policy existed. So too with any prior warnings about such behavior had they happened.

Lessons for employers

Employers can learn from this case about how to ensure that harassment claims are investigated appropriately. Employers also can learn how to minimize risk of liability if a harasser is terminated.

  1. Create and enforce workplace policies. It is important to have a policy in place that clearly states the employer’s position on harassment and that allows management to effectively receive complaints.
  2. Consider the use of warnings. Issuing appropriately worded warnings, when appropriate, for less serious forms of harassment can help to avoid the argument that the employer condones such conduct.
  3. Investigate complaints thoroughly. When complaints are received, it is important to conduct a thorough and proper investigation. Interview the complainant and the person against whom the complaint is made, as well as other potential witnesses. Provide a reasonable opportunity for the employee about whom the complaint is made to meaningfully respond.
About Theodore Fong:
Theodore Fong is an associate litigator in the firm's Calgary office. He joined the firm in 2010. Theodore practices in a wide range of areas, with an emphasis on commercial, product liability, and estate litigation. Theodore has extensive experience litigating commercial disputes, including oil & gas and construction claims. He was involved in a $200 million oil sands engineering, procurement and construction claim relating to delay, and is currently participating in a delay and cost overrun dispute arising from an $83 million contract. He also has extensive experience with liens, most recently participating in the resolution of a $70 million claim. Theodore also practices in the area of commercial insolvency and restructuring. He performs security reviews of debtors for financial institutions, and recently participated in an application to appoint a receiver with respect to a corporate insolvency. Theodore has defended international manufacturers against numerous product liability actions. He defends against negligence and Sale of Goods claims, and has been involved with complex causation cases involving fire and tampering.
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