No room for funny business

Hotel manager’s pursuit of ‘sexual escapade’ with associate cost him his job

On the evening of Dec. 10, 2006, Stan Van Woerkens put on a tuxedo and set out for his employer’s annual holiday party, where he would act as the master of ceremonies. Recently given a promotion to a senior management position with the Marriott’s Renaissance Vancouver Hotel, Woerkens’ career was on the up and up. But life can be lonely at the top. When Woerkens confused a subordinate’s flirtation at the party with sexual advances, he lost his job and brought his 22-year career with Mariott to an end.

The evening began with a champagne reception and ended with an after-party at the hotel for a small group of staff. According to Woerkens, as the evening progressed, one of the female associates came on to him. He testified she sat on his lap at the party and danced suggestively with him after dinner, inviting him to her room.

When the main party died down, a group of employees, including Woerkens and the associate, went up to one of the hotel’s rooms for an after-party. Woerkens said he may have inadvertently touched her when the two were standing alone in the bathroom but generally denied having any other interaction with her. According to her, Woerkens entered the bathroom behind her, closed the door, and pushed her against a counter, kissing and then fondling her. The two left the party at separate times and Woerkens later called her room.

A few days after the party, believing she had been drugged and taken advantage of, the associate filed a complaint against Woerkens with the hotel. Earlier, she had sent Woerkens an e-mail requesting a meeting with him to discuss what had occurred. According to the associate, Woerkens, who was unaware a complaint had been filed, called her back at night from a bar to enquire when they would have their “special meeting.”

Without any advance notice of the complaint or an investigation, Woerkens was called into an office and accused of sexual assault. Pressing him for a confession, Marriott’s senior investigator told Woerkens there was video evidence supporting the complaint. Woerkens denied he had done anything wrong and prepared a written statement responding to the allegations but omitting the fact he had been alone with the associate at the after-party or called her room that night.

Marriott concluded Woerkens had inappropriately touched the female employee and lied during the ensuing investigation by neglecting any mention of having been alone with her. Woerkens was fired for cause.

Claiming he was a victim of a flawed investigation and denying he had done anything wrong, Woerkens sued Marriott for wrongful dismissal.

The court found Woerkens’ recollection of the events did not carry the conviction of truth. Since he knew the associate was intoxicated, it was likely Woerkens fondled her at the after-party and later called her room, interested in pursuing a “sexual escapade.” As well, when Woerkens called her from a bar days later, it was because he continued to believe there was an opportunity to have a sexual relationship with her, the court said.

Where misconduct by a manager leads to a complaint from a subordinate employee, Canadian courts continue to apply a liberal definition to the meaning of harassment. In upholding Woerkens’ dismissal, the court found his behaviour at the after-party amounted to sexual harassment in the workplace and he could not rely on a flawed investigation to avoid the consequences. Woerkens’ actions, whether they were welcome or not, coupled with his dishonesty during the ensuing investigation, were enough to sway the court’s view.

Tips for employers

Workplace investigations. Although Marriott was successful, the flaws in its investigation nearly blew its case. As allegations of sexual harassment are more serious than other forms of misconduct, employers should retain an external investigator to obtain evidence and summarize the events. With that information in hand, they can provide the employee with an opportunity to explain and offer any mitigating factors. That explanation should be reviewed with counsel before deciding what disciplinary action is necessary.

Strengthen and clarify existing workplace policies and employment contracts. Even had Woerkens won the case, the employment contract he signed upon his promotion would have limited his wrongful dismissal damages to the statutory minimums. As most employees have no choice but to sign one-sided contracts, employers can shrewdly limit their potential liability, long before a lawsuit begins.

Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com or by visiting www.toronto-employmentlawyer.com.

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