Employment terminated after female employee complained manager had placed his hands on her shoulder in an inappropriate manner
Shawn Dupuis joined Edmonton Cellular Sales Ltd. in 1999. He rose through the ranks and eventually became the manager of two stores. In July 2004 he was told his employment had been terminated because a female employee had complained Dupuis had placed his hands on her shoulder in an inappropriate manner.
The company had investigated, and other staff members had said they had also been touched, Dupuis was told. He was handed a box containing his belongings and escorted outside.
In his five years at the company Dupuis had never been warned about any complaints of sexual harassment or of his habit of touching employees. The company did not have a written policy, but Dupuis acknowledged he knew inappropriate physical contact with an employee would result in immediate dismissal.
Dupuis filed an action against the company. He claimed his contact with employees was in no way sexual, that nobody had told him they were uncomfortable with his actions and nobody had ever complained to him. He explained that the area in which they worked was relatively confined and he would sometimes put a hand on someone’s shoulder or waist to move that person aside.
The court heard from five witnesses. A 26-year-old said it happened to her twice. She said it made her uncomfortable and that if he had simply said “excuse me” it would have been enough. She thought Dupuis sought out opportunities to stand beside or behind female staff members so he could touch them to move them. He also would put his hands on an employee’s back when talking to her or grab her arm to get her attention, she said.
Other staff members said Dupuis had a manner that was “too close and touchy.” They had all been touched, and all but one said the touching made them feel uncomfortable. They all acknowledged there was no grabbing involved.
Ultimately the court accepted Dupuis’s claim that the touching was not of a sexual nature. Dupuis clearly engaged in physical contact, but he did not know its effect on the employees. As such, said the court, this was not a case of sexual harassment with a physical component where immediate dismissal would be justified.
The company was entitled to make Dupuis aware of the effect of the contact and to insist that it stop. As no such warning was given his termination was therefore unlawful, ruled the court.
Dupuis was awarded five months salary in damages. He was entitled to compensation for the pain and suffering he endured from the shock of his termination and the realization he would have to take up a completely different career, the court decided. Dupuis was awarded an extra five months in Wallace damages for the manner in which he was fired. (For more information about Wallace damages, enter Wallace as a search term in the box at the top of this page.)
For more information see:
• Dupuis v. Edmonton Cellular Sales Ltd., 2005 CarswellAlta 1054, 2005 ABQB 445 (Alta. Q.B.)
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