Love at work can mean headaches for the employer

Employers are limited in trying to prevent office romances but can take steps to protect themselves from conflict of interest and sexual harassment

Given the increased awareness of sexual harassment issues in the workplace along with the importance of avoiding conflict of interest situations, the issue of dealing with the potential problems surrounding office romances has become a significant concern for employers. As a result, many employers are considering formal office romance policies. While it is difficult to establish an enforceable policy that absolutely bans all office romances, it is possible to institute policies that provide a level of protection to employers and ensure office romances do not result in sexual harassment incidents or the creation of circumstances of conflict of interest.

A recent case involving employees of the City of Hamilton demonstrates how the issues of conflict of interest and harassment can stem from an office romance gone sour and the extent to which they can provide just cause for dismissal.

The Ontario Court of Appeal recently upheld a municipal lawyer’s termination after an office romance ended and led to sexual harassment in the case of Menagh v. Hamilton (City).

Robert Menagh was a lawyer who acted as the Director of Labour Relations for the City of Hamilton. He was the senior staff member primarily responsible for the negotiation of labour agreements with the City’s unionized staff and for ensuring the City’s harassment policies were included in the collective agreements he negotiated.

Menagh commenced a romantic relationship in 1997 with Maureen Wilson, who worked as the mayor’s chief of staff and reported directly to the mayor. Menagh did not report directly to the Mayor but would serve as an advisor to the city and the mayor on important labour relations issues. Both Menagh and Wilson had lengthy positive employment relationships with the city and neither had been the subject of any significant disciplinary action.

The relationship was somewhat difficult due to a number of incompatibility issues and by February 2001, Wilson had determined there was no future in the relationship and advised Menagh of her feelings. Over the course of the Easter weekend of 2001, Wilson formally communicated to Menagh that their relationship was over but she hoped they could remain friends.

The trial judge found Menagh refused to accept the relationship was over despite Wilson’s repeated confirmation of this fact. The trial judge found over the course of the next several months Menagh engaged in the following unwelcome behaviours which constituted sexual harassment:

• he repeatedly discussed the breakdown of the relationship with Wilson’s co-workers (despite knowing Wilson was a very private person);
• he continued to send flowers to her office;
• he went to her home uninvited and would knock on both her front and back doors;
• he stood on the path outside her office window looking in at her;
• he began deliberately parking his car next to hers in the parking lot;
• he continued to send her email messages suggesting a rekindling of their romantic relationship (including proposals of marriage); and
• he commenced actions of reprisal and uttered threats when he learned Wilson had commenced a new relationship.

The trial judge noted many of these things happened in the workplace and Wilson repeatedly and clearly made Menagh aware his conduct was unwelcome. As such, his conduct amounted to sexual harassment in the workplace.

Once Menagh became aware of Wilson’s new relationship, he took active steps to try to get her fired. He met with Wilson’s boss, the mayor, and suggested to the mayor that he should terminate Wilson’s employment due to a potential negative newspaper article about her that would soon be published. The trial judge held that Menagh’s unsuccessful attempt to have Wilson fired constituted a reprisal for spurning his romantic overtures and that Menagh had placed himself in a conflict of interest position as he ought not to have been providing the mayor with any advice in respect of Wilson’s continued employment.

In late December 2001, Menagh was charged with uttering death threats, two counts of criminal harassment and dangerous driving after an incident occurred in which he was found to have been driving his vehicle at high speeds in Wilson’s neighbourhood, causing Wilson’s new partner to jump out of the street to get out of the car’s path. The city learned of the charges, conducted their own investigation and terminated Menagh’s employment for just cause.

Menagh sued the city, alleging he had been wrongfully dismissed. The trial judge and the Court of Appeal both concluded the city had just cause given Menagh’s continued acts of harassment and his conflict of interest.

For employers, this case provides a somewhat extreme situation of what can happen when a relationship between co-workers breaks down. What steps can an employer take to prevent similar circumstances?

It is difficult to establish an enforceable policy that absolutely bans all office romances. However, an office romance policy can clearly stipulate romances between employees who are in a reporting relationship to one another are prohibited. Relationships between managers or executives and more junior employees invariably involve an underlying power imbalance between the parties. In most cases, this power imbalance will be difficult to overcome, creating a conflict of interest situation. The presence of a power imbalance within a relationship also increases the risk a sexual harassment complaint can be successfully launched against the manager or executive and the company, in the event the relationship eventually comes to an end. If such a relationship develops, the policy should provide that both parties are required to inform the employer of the relationship so appropriate steps can be taken to lessen the possibilities of conflict of interest, harassment or favouritism occurring. Often this may require a change of position for one of the employees involved. In some circumstances, a discontinuation of employment for one of the parties may be the only workable resolution.

An office romance policy should also clearly set out the differences between personal/private matters and proper employment matters. Office gossip is disruptive, damaging to reputations, and may adversely affect the corporate culture. The policy should provide that discussions of problems in the relationship must not be aired or shared with co-workers. A professional atmosphere must be maintained at all times. Employees should be prohibited from engaging in gossip, rumours, or similar negative behaviours.

Other policies relating to harassment or conflict of interest situations should also be prepared or reviewed to ensure they deal with the possibility of a romance between employees appropriately. The policies should be clear that conduct occurring in the "workplace" (broadly defined) is governed by the policies. The policies should also note that interactions between employees that take place outside of formal work events can also have a bearing on the workplace and therefore employees should be guided by the company’s policies and procedures in respect of all interaction between employees (regardless of the location or timing of such interactions).

It is clear these types of relationships have the potential to adversely impact on the operations of the company. Generally, workplace relationships are not grounds for termination of employment. To constitute cause for dismissal, the employer must prove the consensual relationship has had an adverse impact on the company’s operations to the extent the employee’s actions can be considered a breach of the employment contract and that continued employment has become unworkable. From a strictly legal perspective, it is advisable to strongly discourage office romances. However, human nature being what it is, instituting the types of policies as set out above is probably the best an employer can do.

For more information see:

Menagh v. Hamilton (City), 2007 CarswellOnt 2030 (Ont. C.A.).

Chris Foulon is a Partner of Israel Foulon LLP, a leading employment and labour law firm in Toronto. Chris can be reached at (416) 640-1550 or [email protected].

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