Intoxication not an excuse for sexual harassment of colleague

A British Columbia tribunal has overturned an award of termination pay to a worker who was fired after sexually harassing a colleague.

The worker was employed with national company at a location in B.C. He was hired in February 2015.

In late 2017, the employer held a three-day training session in the U.S. that was open to employees from multiple locations. During the training, the worker met up with a female colleague who worked at a different Canadian office with whom he sometimes collaborated. They knew each other through work, but since they were located in different provinces, it was the first time they had met in person.

After the first day of training, the employer hosted a dinner, after which about 15 employees went out socially for drinks. Most of the employees consumed a large amount of alcohol at the gathering. At the end of the evening, the worker and his female colleague took a taxi back to the hotel, with a third employee — who didn’t drink alcohol and therefore wasn’t intoxicated — sharing the taxi and sitting in the front seat.

According to the colleague, the worker started to kiss her neck and lick her face while they rode in the back seat. She pushed the worker away and told him to stop. The third employee in the front seat saw what happened and also told the worker to stop, which he did.

When they arrived back at the hotel, the colleague invited them to her room to continue drinking. The third employee had to leave briefly to deal with something, and while he was gone, the worker started to make advances towards his colleague again. The colleague told the worker to stop and said she was married. She also said it was making things awkward, as they interacted remotely as part of their work. The third employee returned and soon departed with the worker. After they left, the female colleague locked the door.

A short time later, the female colleague invited another man whom she had met earlier in the evening to her room. The worker, who was downstairs having a cigarette, observed the man leaving the hotal. The colleague said she soon received a text from the worker saying — in a crude way — that he couldn’t believe she slept with the man instead of him. It also stated, “I hope your husband is going to be very happy.”

The female colleague was afraid that the worker would tell her husband or co-workers about the other man, so she spoke to him over the phone and at the door to her room. According to her, the worker continued to “make advances” towards her, screamed at her, and asked why she wouldn’t be with him. He pushed her against the door and tried to kiss her, but he eventually left.

The next morning, the female colleague told the worker that he should forget everything that had happened the previous evening. She didn’t report any of the worker’s behaviour to the employer because she was ashamed and embarrassed about it.

Complaint filed 6 weeks later

About six weeks later, the employer scheduled a “road show” that would bring her into contact with the worker once again. She was worried about how they would interact, so she consulted the HR department. This led to her filing a formal complaint under the employer’s harassment and discrimination policy. All employees were obligated to abide by the policy and received training. The worker received web-based sexual harassment training in May 2017, several months before the incident.

The female colleague was initially ashamed and embarrassed, so she didn’t report the incident right away.

The employer conducted an investigation that included interviews with the worker, the female colleague, and the third employee who had been in the taxi and hotel room. It also provided the worker with a copy of the complaint and asked him to respond in writing. The investigator found that the worker was defensive, “aggressive and argumentative” during the investigation and seemed more concerned with a complaint he had made about his expenses and commissions.

The employer determined that it couldn’t have the worker and the female colleague interact in the workplace in any way, and the worker had violated the harassment and discrimination policy. It terminated his employment on June 8, 2018.

The worker filed a claim for termination pay, saying the employer didn’t have just cause for dismissal. He said that the female colleague only complained about his conduct because she was afraid that her husband would hear about her affair with the other man. He also argued that the third employee couldn’t have seen into the back seat of the taxi, the female colleague was drunk, and the only physical contact was incidental. He denied trying to kiss her, push her, or sending her a text — he claimed colleague texted him “don’t tell” and asked him to come to her room to talk.

Intoxication of both employees a factor: delegate

An employment standards delegate found it was likely that the worker tried to kiss his colleague in the taxi and made another attempt in the hotel room. However, “the incident was fuelled largely by the excessive alcohol intake of everyone that night” and both the worker’s and the female colleague’s judgment was impaired. The delegate found that the worker had no previous misconduct, he wasn’t in a supervisory position relative to the female colleague, and they worked in two different provinces so the employer could make arrangements to ensure that they weren’t required to work together. As a result, even though the worker’s misconduct was serious and a breach of the policy, termination was excessive and lesser discipline should be substituted. The employer was ordered to pay wages and interest totalling more than $74,000 to the worker.

The employer appealed to the tribunal, arguing that the worker’s short service with the company and his dishonesty throughout the investigation of the complaint created a fundamental breakdown in the employment relationship.

The tribunal found that “alcohol consumption does not excuse or mitigate the seriousness of an employee’s sexual harassment” and the delegate erred when it didn’t consider the worker’s alcohol consumption, second attempt at unwanted touching and failure to co-operate with the investigation as aggravating factors. As a result, the serious misconduct and behaviour during the investigation was “fundamentally inconsistent with a continuation of the employment relationship, the tribunal said in finding there was just cause for dismissal.

The tribunal overturned the delegate’s decision awarding termination pay and upheld the dismissal for cause.

For more information, see:

• Employer (Re), 2021 BCEST 58 (B.C. Emp. Stds. Trib.)