Manager didn’t clearly rebuff boss’s sexual advances

Infatuated boss entitled to ESA severance

Ontario’s second highest court has upheld an adjudicator’s decision that Xerox Canada wrongfully dismissed a senior manager for sexual harassment.

In a two-to-one decision, with Justice J. MacDonald dissenting, the court has upheld the adjudicator’s award of severance and termination pay under the provincial Employment Standards Act. The adjudicator found that Paul Reeves had harassed J.T., a manager who reported to him, but that the harassment fell short of wilful misconduct justifying summary dismissal.

During a downsizing period when employees were under close evaluation, Reeves confessed to J.T. that he loved her. Not wishing to offend Reeves and compromise her status at Xerox, J.T. tried to put him off by joking that she only liked married men and rough sex.

When colleagues advised her to take a firmer line, J.T. told Reeves she could not have an affair with him because it was wrong. However, the two remained very friendly and flirtation continued. The sad facts appear to be that, while Reeves never was unacceptably physical or crude, he persisted in the hope that he could win J.T. over.

The adjudicator found that J.T. never made it appropriately clear to Reeves that his conduct caused her discomfort and had to stop immediately. As well, although Xerox had a written harassment policy, no one followed it, such that Reeves found himself dismissed without warning.

In the dissent, Justice Macdonald writes that in fact the adjudicator did find that Reeves was aware of J.T.’s discomfort. As well, Justice Macdonald concludes, in his special circumstances as J.T.’s supervisor at Xerox, Reeves was reckless about how his conduct might have affected J.T. and that this recklessness could have amounted to wilful misconduct.

For more information: Xerox Canada Ltd. v. Ontario (Director of Employment Standards), Ont. Div. Ct. file 671/97, December 13/99.

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