Affair coverup causes breakup with employer

Affair between admin assistant and manager began before company implemented non-fraternization policy

An Ontario employer had just cause to dismiss a manager who lied about an affair he had with an administrative assistant, the Ontario Superior Court of Justice has ruled.

Bryan Reichard, 50, was hired in 1984 by Kuntz Electroplating, a metal finishing company in Kitchener, Ont. By 2007, Reichard became purchasing manager. While with Kuntz, Reichard had no disciplinary issues and was considered an exemplary employee.

In 2003, Reichard began a secret affair with an administrative assistant, who at the time did not report directly to him. Two years later, Kuntz implemented a non-fraternization policy in its workplace to protect employees from sexual harassment. Under the policy, employees had to disclose any romantic relationships with other employees to their supervisors, to avoid favouritism and conflicts of interest. Failure to comply could result in discipline up to and including dismissal. The policy put the onus of reporting on the person “occupying the position of power or having the status advantage.”

As time passed, it became more difficult to hide the affair and rumours spread throughout the workplace. Reichard was asked several times by his superiors about it but denied it each time. He also acknowledged he knew about the policy when it came into effect.

At one point, Reichard recommended the assistant for a transfer to where she would be under his direct supervision. He also gave her good reports at informal meetings with his superiors.

In early 2008, Reichard confided in a co-worker about his relationship problems. The co-worker reported it to Reichard’s supervisor and Reichard was forced to admit to the affair. He was suspended indefinitely, with instructions not to return to the workplace until someone contacted him.

However, Reichard returned to Kuntz twice while suspended. When his supervisor found out, he decided that the failure to obey his orders combined with his lying about the affair undermined the company’s trust in him. Reichard was dismissed for cause.

Reichard argued the policy should not apply to him because the affair began before the policy was in effect. He also said dismissal was too harsh.

The court noted that Kuntz’s policy did not prohibit romantic relationships, but only required employees to report them. Therefore, the misconduct at issue was not the relationship, but rather Reichard’s attempt to hide it. This misconduct was a “flagrant and continuous breach” of the policy involving Reichard lying on several occasions to his superiors. In addition, while Reichard was on suspension, he compounded his misconduct by twice disobeying his instructions and coming into the workplace.

Since Reichard’s position as a manager required trust and integrity and an obligation to lead by example, his misconduct seriously damaged the employment relationship, said the court. His actions raised the potential for conflict of interest and sexual harassment complaints, which Kuntz’s policy was designed to protect against. The damage to Reichard’s trust, integrity and honesty was sufficient to give Kuntz just cause to terminate his employment, said the arbitrator. See Reichard v. Kuntz Electroplating Inc., 2011 CarswellOnt 14997 (Ont. S.C.J.).

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