Firing too harsh for sexual harasser: Court

Director’s behaviour at party was sexual harassment but it didn’t significantly impact the work environment

An employee’s sexual harassment of a co-worker was not serious enough to warrant dismissal, according to the Alberta Court of Queen’s Bench.

Sean Hodgins was the director of operations for St. John Ambulance in Alberta. He had been promoted from manager of the Calgary branch and was viewed as an important and valuable asset to the organization.

As a director, Hodgins was given the organization’s policies and procedures relating to dismissal, including a sexual harassment policy which was revised and came into effect in 2003. Senior staff were trained on the new policy at a meeting on Nov. 29, 2003. Coming out of the training, Hodgins believed one was guilty of harassment only if the offender knew his behaviour was harassing.

On Jan. 14, 2004, an employee at the Edmonton branch, which Hodgins had been overseeing in the interim until a new manager could be appointed, submitted a complaint in writing to the CEO stemming from four events at a branch Christmas party held on Dec. 4, 2003.

The employee said she overheard Hodgins say the woman who drove him to the party was the youngest person to have gotten his pants off that fast in a long time. She also said Hodgins had repeatedly told her how nice her hair looked, which made her uncomfortable. Later, he came up to her and her husband, put his arm around her, asked for a ride home and said she wouldn’t have to dump her husband to take him home. Finally, when the partygoers began bowling at the party, her husband made a comment about her behind which Hodgins repeated with his hands in the air, which embarrassed her.

Though she had avoided Hodgins since the party, the employee specified in her complaint she didn’t feel threatened in her job and she just wanted his behaviour to change so their relationship would return to the good-natured friendship they had before the party.

Hodgins was not aware any of these situations had made the employee feel uncomfortable and didn’t find out until he was informed of the complaint on Jan. 16, 2004. At that time, the St. John Ambulance CEO met with him and asked him if he remembered making the comments. Hodgins said he didn’t remember specifically, he didn’t intend to harass the employee and wanted to talk to her. The CEO refused as he wanted to keep her identity secret. He told Hodgins he had a choice to resign or be terminated since he likely wouldn’t want to continue to work in a poisoned environment. He was given until the following Monday to make his decision. However, Hodgins thought he’d been given an additional option: To stay and work in “an uncomfortable environment.”

The court found Hodgins’ actions constituted sexual harassment as the policy stated it only had to make the victim uncomfortable, whether the offender knew or not. The exception was the comment she overheard, which wasn’t directed at her. The court also found Hodgins should have been more aware of his behaviour, considering he had just been trained on the organization’s new sexual harassment policy a week earlier.

However, the court didn’t find any indication the work environment suffered.

“The victim did try to avoid Mr. Hodgins, but when they did have contact it seems these events did not prevent them from being able to do their jobs,” the court said. “I think it is significant the victim did not think the conduct was so severe she wanted Mr. Hodgins fired.”

Considering the employee felt the work atmosphere and relationship between them could be restored, the fact Hodgins had no prior disciplinary issues and the acts of harassment were “toward the lower end of the scale,” the court found the employment relationship was not irreparably damaged. As a result, it found termination was too harsh of a disciplinary measure.

The court felt the level of his position and his years of service entitled Hodgins to a notice period of 12 months, which included his annual salary of $90,000 plus an expected bonus of $10,000.

For more information see:

Hodgins v. St. John Council for Alberta, 2007 CarswellAlta 559 (Alta. Q.B.).

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