Administrator held to a higher level of conduct

Gateway is a non-profit corporation carrying on the business of providing co-operative subsidized housing. Gateway has 217 co-op units and is managed by a volunteer board of directors elected by and drawn from the co-op members. The office staff consists of an administrator, an assistant administrator and a part-time bookkeeper.

Mr. Alleyne was the administrator prior to his termination. The administrative office was described as a very friendly atmosphere with lots of sexual banter including sexual jokes. The staff also participated in personal discussions about each other’s intimate lives and behaviour.

The employees participated in an annual job evaluation of each other including a job evaluation of the administrator. The evaluation process consisted of written evaluations and a meeting with the personnel committee. The committee would then submit a report to the board of directors. The committee could make recommendations as to whether merit pay should be considered by the board for each staff member.

In 1996 the job evaluation of Mr. Alleyne included a report by Ms. MacDougall, the part-time bookkeeper, that Mr. Alleyne was using “sexual innuendoes to the female staff.” Upon receipt of this report Dan Keating, a member of the board of directors, confronted Mr. Alleyne. Mr. Alleyne responded by stating that “nobody was being offended and the office staff were all participating in it, as well as board members.” Mr. Alleyne told the board that Ms. MacDougall was a participant in the “sexual banter.” As a result Ms. MacDougall was also given a warning about the improper office conduct. Nothing further was done as a result of this complaint.

In the spring of 1997 several staff members including Mr. Alleyne and Ms. MacDougall attended a conference in Montreal. At this conference Ms. MacDougall was an active and willing participant in presenting Mr. Alleyne with a “gag gift” that had sexual overtones.

Later that year Ms. MacDougall did not submit her 1997 evaluation of Mr. Alleyne to the board. Mr. Keating questioned Ms. MacDougall about her failure to submit the evaluation. In response Ms. MacDougall indicated that since nothing had been done regarding her complaint in 1996 she was not going to submit another evaluation. She made a further allegation of sexual harassment which had progressed to physical touching.

Mr. Keating conducted an investigation, interviewed witnesses and confronted Mr. Alleyne about the allegations. Mr. Alleyne responded to the allegation again by saying that any sexual innuendo or physical contact between himself and Ms. MacDougall was not “unwanted” and that Ms. MacDougall had participated willingly.

As a result of the allegation of sex- ual harassment the board of directors decided to terminate Mr. Alleyne. He was advised of this decision on June 23, 1997. Mr. Alleyne brought an action for wrongful dismissal.

In order to establish just cause based on sexual harassment the employer must establish at trial that the complaint did have substance and that the actions of the employee jus- tified the employee’s termination.

Mr. Alleyne acknowledged that he gave his female subordinates massages. He admitted to kissing Ms. MacDougall and exchanging details with her of his sex life. He also admitted to touching her on the leg above her knee and discussing intimate aspects of sex. Ms. MacDougall had twice complained to the board of directors about Mr. Alleyne’s conduct, but she also participated in the activity.

There also was the real possibility that Ms. MacDougall was motivated to bring her complaint due to an investigation underway involving improper payments that she had made to herself in which Mr. Alleyne had taken a position against her. Based on the totality of this evidence, the Court held that the complaint had substance.

The Court further held that Gateway was justified in terminating Mr. Alleyne’s employment. Although there was an indication that the conduct was not necessarily “unwelcome” and that Ms. MacDougall often participated in the sexual discussions, he had a supervisory position and she was his subordinate. Mr. Alleyne was aware that his conduct was in breach of policy.

By admitting that he did not engage in discussions of a sexual nature at those times when his wife worked in the office part-time because she “would have probably been offended if she had heard or observed such conduct,” Mr. Alleyne acknowledged that his behaviour was not appropriate.

The Court also took into consideration the fact that Gateway was run by a volunteer board of directors who relied on the skill, experience, knowledge and good judgment of its administrator. Mr. Alleyne had a significant role in the operation of the housing co-operative.

Based on these factors the Court held that Mr. Alleyne’s conduct resulted in a violation that undermined the obligations inherent in this employment relationship.

For more information:

Alleyne v. Gateway Co-Operative Homes Inc., Ontario Superior Court of Justice, Docket No. G20926-97, Oct. 29/01.

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