Fleming v. Ricoh Canada Inc., 2003 CarswellOnt 5593 (Ont. S.C.J.)
Gerard Fleming was hired by Ricoh Canada to overhaul its underperforming sales department. Relations between some of the male and female staff in the department were characterized as being one of “ribald” humour. Things came to a head in April 2002 when Fleming was fired. Richoh claimed Fleming’s language with his female staff constituted an abuse of authority and sexual harassment and there was no choice but to terminate his employment.
Fleming said he engaged in banter that was mildly sexual and was carried on by many in the department; that his apology for one particularly angry outburst was accepted by a woman who subsequently filed a grievance against him over that episode; and even if Ricoh had just cause to terminate his employment, he was nonetheless entitled to termination pay.
In July 1998 Fleming was hired to energize a flagging sales department. In doing so he instituted an incentive scheme that achieved greater sales results but also caused resentment among sales staff who were forced to work harder. The court was also told a relaxed attitude towards sexual banter between male and female staff existed before Fleming’s employment, and he claimed he took part in it and didn’t seek to discourage it because the staff already had objections to his leadership and he wanted to be seen as part of the group. Fleming described the atmosphere as “a relaxed and fun climate.”
At a weekly staff meeting on April 12, 2002, Fleming and a female staff member had a confrontation in which he used inappropriate language, causing her to leave the room. He apologized shortly afterwards, and the meeting resumed; but it set in motion the complaints from two female staff members which ultimately led to his dismissal. Fleming claimed the women had conspired to have him fired, in part because their income was threatened by the sales incentive schemes he had initiated.
The Ontario Court of Justice dismissed all of Fleming’s appeals. The assertions of the women and witnesses were more than credible, ruled Justice Whitten, to establish that Fleming’s behaviour contravened the company’s zero-tolerance harassment policy. One of the complainants was clearly “the apparent object of his sexual desires,” ruled the court, “which contributes to an extremely problematic work relationship with a superior.”
As such the company, which has a duty to protect its employees from sexual harassment, was faced with a situation that needed to be dealt with. Merely giving Fleming a warning would undermine the company’s harassment policy, and Ricoh was well within its rights to terminate him for just cause, willful misconduct and willful neglect of duty. Therefore Fleming is not entitled to termination pay, the court ruled.
Justice Whitten said a pre-existing work environment, in which sexual innuendo abounds and females staff are not offended by it, is not a consideration for the courts. He quoted another court’s ruling that “it is not a question of the strength or mettle of female employees; or their willingness to do battle. No female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented. It is an abuse of power for a supervisor to condone or participate in such conduct.”
Gerard Fleming was hired by Ricoh Canada to overhaul its underperforming sales department. Relations between some of the male and female staff in the department were characterized as being one of “ribald” humour. Things came to a head in April 2002 when Fleming was fired. Richoh claimed Fleming’s language with his female staff constituted an abuse of authority and sexual harassment and there was no choice but to terminate his employment.
Fleming said he engaged in banter that was mildly sexual and was carried on by many in the department; that his apology for one particularly angry outburst was accepted by a woman who subsequently filed a grievance against him over that episode; and even if Ricoh had just cause to terminate his employment, he was nonetheless entitled to termination pay.
In July 1998 Fleming was hired to energize a flagging sales department. In doing so he instituted an incentive scheme that achieved greater sales results but also caused resentment among sales staff who were forced to work harder. The court was also told a relaxed attitude towards sexual banter between male and female staff existed before Fleming’s employment, and he claimed he took part in it and didn’t seek to discourage it because the staff already had objections to his leadership and he wanted to be seen as part of the group. Fleming described the atmosphere as “a relaxed and fun climate.”
At a weekly staff meeting on April 12, 2002, Fleming and a female staff member had a confrontation in which he used inappropriate language, causing her to leave the room. He apologized shortly afterwards, and the meeting resumed; but it set in motion the complaints from two female staff members which ultimately led to his dismissal. Fleming claimed the women had conspired to have him fired, in part because their income was threatened by the sales incentive schemes he had initiated.
The Ontario Court of Justice dismissed all of Fleming’s appeals. The assertions of the women and witnesses were more than credible, ruled Justice Whitten, to establish that Fleming’s behaviour contravened the company’s zero-tolerance harassment policy. One of the complainants was clearly “the apparent object of his sexual desires,” ruled the court, “which contributes to an extremely problematic work relationship with a superior.”
As such the company, which has a duty to protect its employees from sexual harassment, was faced with a situation that needed to be dealt with. Merely giving Fleming a warning would undermine the company’s harassment policy, and Ricoh was well within its rights to terminate him for just cause, willful misconduct and willful neglect of duty. Therefore Fleming is not entitled to termination pay, the court ruled.
Justice Whitten said a pre-existing work environment, in which sexual innuendo abounds and females staff are not offended by it, is not a consideration for the courts. He quoted another court’s ruling that “it is not a question of the strength or mettle of female employees; or their willingness to do battle. No female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented. It is an abuse of power for a supervisor to condone or participate in such conduct.”
