Bank manager turfed for ‘sexual fantasies’

Manager drank too much at lunch, acted inappropriately towards female staff

William Shek was the manager of a Bank of Nova Scotia branch in Toronto, Ont., from 1988 until his dismissal in March 1994. An adjudicator ruling on the bank’s termination of Shek’s employment ruled he drank too much alcohol at lunch, causing him to act inappropriately towards his female employees.

His behaviour included:

•offering to perform an examination on his pregnant secretary;

•telling a worker he should spank her;

•telling two workers he ought to search them;

•inviting a worker to go home with him;

•asking a worker if her boyfriend used condoms;

•commenting on the body parts of staff members; and

•telling a staff member, in the presence of others, that for two years he had wanted her to be his girlfriend.

This, ruled the adjudicator, was the articulation of sexual fantasies that was a form of sexual harassment. When the bank had interviewed Shek as part of its investigation of the complaints he denied having an alcohol problem. He said he was unaffected by three beers and was not adversely affected by consuming 12 of them at home.

As a result of the meeting the bank decided to dismiss him. The basis for this was the offensive sexual comments to his staff, verbal harassment, lunchtime alcohol consumption that affected his association with staff and customers and not being truthful when he was interviewed.

Before the letter of dismissal was given to Shek another series of complaints, this involving bank customers, came to light.

One claimed Shek had agreed to approve a $50,000 loan if he was allowed a 50 per cent investment in the company and employment for his son.

A second claimed Shek had persuaded him to import items from the United States for him, which he paid for but avoided duties, taxes and delivery charges on.

A third involved Shek accepting about $20 worth of items from a store.

A fourth was that he ordered a number of drawer units for the branch, and a stereo stand for himself, without establishing a price for them.

The adjudicator subsequently upheld the bank’s termination of Shek; and he applied for a judicial review of the ruling. He argued that his misconduct was not very serious; that his last performance review had been satisfactory; that drinking at lunch wasn’t prohibited by the bank and that his banking abilities were never impaired by his lunchtime drinking; and that there was favourable evidence that had a positive bearing on his prospects for rehabilitation.

None of this, Shek claimed, had been considered by the adjudicator. He also argued the adjudicator had no basis for concluding he had experienced sexual fantasies. As for the conflict-ofinterest charges, he argued the adjudicator should have referred to the bank’s policy on gifts in determining whether he had done wrong — that he had admitted his errors and he would henceforth conduct himself in accordance with the bank’s guidelines.

He ought to be reinstated to his former position after serving a suspension, he concluded. The court upheld the adjudicator’s decision. The adjudicator, it ruled, had noted there was no evidence that Shek’s alcohol consumption had led to errors of judgment in approving credit applications, but had ruled, further, that there were more to his duties than that.

Shek was the person responsible for carrying out the bank’s obligation to provide a workplace free from harassment and this was an aggravating factor in considering the seriousness of his misconduct. The adjudicator had used the term “sexual fantasy” in a non-medical sense, ruled the court. He had thought of and spoke of doing those things but had no intention of doing them, and thus the use of the words “sexual fantasy” is not patently unreasonable.

That Shek’s most recent performance review had been favourable doesn’t matter, ruled the court, as the adjudicator had noted that staff members had not complained about his conduct earlier because they feared it would have a negative effect on their careers. The adjudicator had also noted that while bank policy didn’t expressly forbid alcohol consumption, the issue with Shek was that he consumed quantities that impaired his relations with his staff.

The adjudicator had indeed considered Shek’s prospects for rehabilitation, ruled the court, and had not considered “hope for improvement” likely. On the conflict-of-interest charges the court ruled the adjudicator found Shek had not made an unqualified admission of it, and its failure to mention this in its findings was not patently unreasonable. The adjudicator, the court ruled, had been correct in deciding that the issue there was not fundamentally about gifts but rather about Shek’s tendency to impose on the bank’s customers.

The court also rejected Shek’s claim that the delay between final submissions in the case, in January, 2000, and the release of the decision in July, 2001, was unreasonable. Shek was dismissed in 1994 and the hearing was concluded in 2000, ruled the court.

There was no prejudice caused by the delay, and the extra 18 months did not have a negative impact on the likelihood of a decision in his favour. The adjudicator’s decision was thorough and balanced, and its conclusions justified. There was no patent unreasonableness, the standard for judicial review in matters like this, ruled the court, and Shek’s application was dismissed.

For more information see:

Shek v. Bank of Nova Scotia, 2005 CarswellNat 25, 2005 FC 11 (F.C.)

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