‘If punishment less than termination would be reasonable… that will likely be substituted’
A long-term employee whose conduct made his female co-workers uncomfortable deserved discipline but not dismissal, the Canada Industrial Relations Board has ruled.
The worker joined the airline WestJet in 1998, moving up through several positions and receiving positive performance reviews. He had no discipline on his record. In 2008, he took an advisor position in a specialized department that planned for contingencies that could affect WestJet and its customers.
The worker grew up in an environment in which his family was open about many topics and didn’t follow traditional male-female boundaries. His father was a physician who talked about medical issues such as pregnancy, childbirth, and other medical issues. As a result, the worker was comfortable broaching these subjects in conversations with others, including co-workers.
The department was small and close-knit, and the worker was close with a co-worker who had another job assisting pregnancy, childbirth, and the postpartum period. The worker would often speak about the birthing process and breast development in girls with her and other colleagues. However, the co-worker and other female employees felt that the worker’s fascination with these topics was weird and off-putting. They also had issues with his personal hygiene, as he had body odour and picked at his own skin – the latter being a manifestation of ADHD.
Another employee, KS, joined the department temporarily in 2019. After leaving for a short time, KS returned in September 2020. Due to cutbacks during the pandemic, only the worker, KS, and their manager were in the department.
New colleague felt uncomfortable
According to KS, the worker started talking about her physical appearance and asked questions about her daughter, who was around the same age as the worker’s own 14-year-old daughter.
The worker told KS a few times that she had a “resting bitch face.” KS told him to stop saying that, to which the worker replied that it was “just how guys talk.” However, the worker stopped saying it.
According to KS, the worker made comments about her breasts and how her clothing fit her, which made her feel humiliated. He also asked her about her daughter’s physical development and menstruation, and mentioned his own daughters’ change in physical appearance. This made KS uncomfortable and she asked the manager to change desks. She also started to work from home more often to stay away from the worker.
On April 30, 2021, the worker and KS were in a virtual meeting and he mentioned it was his daughter’s birthday and she was “growing up so fast.” He then discussed her physical appearance and KS told him she was uncomfortable with the conversation. She was upset because she felt the worker’s comments about his daughter were sexualized.
KS decided the worker’s comments constituted harassment under WestJet’s Code of Conduct and other policies. The next workday, May 3, she asked the worker to stop making such comments and the worker apologized. However, the worker didn’t feel he was sincere, so she made a complaint to the manager. She had no concerns for her safety, but his conduct – including aggressiveness and being argumentative – had a psychological effect on her.
Workplace investigation
WestJet conducted an investigation, with the investigator interviewing KS twice as well as the worker’s former colleagues. KS and the other co-workers described the topics the worker talked about and said he would “gaslight” them if they expressed concerns. They also said he could get angry and act intimidating, such as in one incident when he stood up and lunged towards a co-worker.
The investigators found the worker to be defensive and vague in his interview, continuously saying he was honest and taking a long time to think about his answers. When faced with evidence that contradicted some of his denials, he claimed to have no recollection of events. However, he hadn’t been given any advance indication of what would be discussed.
At one point, the worker seemed uncomfortable to the point where he adjusted his facemask so much the metal nosepiece caused his nose to bleed. According to the worker, this was another manifestation of his ADHD, about which he told the investigators.
The investigators determined that the allegations against the worker were substantiated and he breached WestJet’s Code of Business Conduct, Respect in the Workplace Policy, and Workplace Violence Prevention Policy.
“WestJet’s investigators did a thorough job of interviewing all of the people who were important to the sexual harassment investigation,” says Mike Hamata, a labour and employment lawyer at Roper Greyell in Vancouver. “It looks to me like that part of WestJet’s response was handled well.”
Termination for cause
The company terminated the worker’s employment for cause on June 24, citing five grounds - soliciting information about female colleagues' sexual development and that of their children, making intrusive sexual comments, sharing intimate family details, demonstrating aggressive physical behaviour, and retaliating against female colleagues.
The worker filed an unjust dismissal complaint, arguing that his personal life and upbringing made it easy for him to discuss these topics. He also argued that his past conduct against former co-workers shouldn’t factor into KS’s complaint, and he apologized for the “resting bitch face” comment. In addition, the worker asserted that if discipline was necessary, then it should be less because he had no prior warning to stop his behaviour or that his job was in danger.
“The investigators made findings that the worker wasn’t credible, and they based that determination in part on his conduct during their interviews, which involved adjusting his mask so many times that his nose started bleeding,” says Hamata. “The investigators found that that was evidence of dishonesty in the investigation, whereas the board said that was probably just the worker’s medical issues causing him to behave that way, and the investigators knew about those medical issues.”
“In addition, the investigators didn’t account for time that had passed since the events that were being asked about and the fact that the worker didn't have any idea about the topics of the questions he was going to be asked,” he says.
The board noted that the definition of acceptable conduct with regards to sexual harassment has changed over time and the worker’s comments created an uncomfortable working environment for some co-workers. However, the worker’s comments weren’t sexual in nature or intent and, while some felt they were weird, none of the co-workers appeared to take them in a sexual manner or feel in danger, the board said, adding that the worker’s actions stemmed from a lack of awareness of boundaries rather than malicious intent and didn’t meet the threshold of sexual harassment.
Sexual harassment
“It's not enough for an employer to say it concludes that the worker has engaged in sexual harassment of some kind and therefore termination is a probable result - there has to be a contextual analysis,” says Hamata. “And the board said sexual harassment exists on a spectrum from sexual coercion to sexual annoyance, and this conduct was closer to the sexual annoyance end of the spectrum – although it took care to say that there could still be sexual annoyance that's sufficient to warrant termination.”
WestJet had trained its employees on sexual harassment between employees, but the situation here was slightly different, according to Hamata.
“It was an employee being inappropriately familiar in conversation with his co-workers, and it looked like that wasn't something that had formed part of the training,” he says. “The other thing is that the board found the worker wasn’t very liked by his co-workers and criticized the investigation for not making enough effort to separate those two things.”
The board found that the worker’s conduct was inappropriate and warranted disciplinary action, but the worker’s lengthy and discipline-free service, his positive work performance, and the absence of prior warnings were in factors in his favour. The board also noted that co-workers had expressed discomfort to each other but hadn’t brought their concerns to WestJet’s attention before the final incident involving KS.
The board determined that termination was disproportionate and a five-day suspension along with training and counselling was an appropriate response.
As the worker didn’t request reinstatement, the board reserved jurisdiction on the matter of remedy and directed WestJet and the worker to work towards an agreement.
Appropriate discipline
“Termination has been described as the capital punishment of labour and employment law, so if punishment less than termination would be reasonable in the circumstances, that will likely be substituted,” says Hamata. “Employers should take into account all of the circumstances, including condonation by the employer, the service of the employee, and a discipline-free record - those were huge factors in the board's decision.”
“And it's the role of the investigator to correct for whether an accused is likable or not and make a decision about the things that are potentially misconduct, not just whether someone fits the normal stereotype for a likable person at work.”
