‘Middle of the spectrum’ sexual harassment not grounds for dismissal

Brazeau v. I.B.E.W., 2004 CarswellBC 2979, 2004 BCCA 645 (B.C. C.A.)

Wayne Brazeau, 69, was a member of the International Brotherhood of Electrical Workers. In February 2001 he was terminated for sexual harassment and discrimination.

The British Columbia Court of Appeal heard evidence that in July 1993 the recently-divorced Brazeau developed a romantic interest in Christine Pynaker, a member of the brotherhood. He encouraged her professionally, giving her advice on how to become an international representative, a position he held. In 1994 she was given such a position in Calgary, while Brazeau moved to Vancouver.

Between July 1993 and December 1996 he sent her cards and messages, gave her flowers and presents, invited her to dinner, and complimented her on her appearance. Some of the gifts were accepted and others returned, but his romantic moves were never reciprocated.

In December 1996 Pynaker told him there was no chance of a personal relationship. She also had a friend of hers convey the message to Brazeau who, until that time, may not have fully understood the firmness of her rejection. In April 1998 at a conference in Kelowna, B.C., Brazeau directed Pynaker to lead a workshop but did not provide her with the materials he provided to other workshop leaders.

In 1999 Brazeau led an organizing drive for members and, again, she wasn’t given direction or the necessary materials. In May 1999, at a meeting in the United States, he accused a participant of the meeting of flirting with her. In October 1999 he made derogatory remarks about her to a union organizer hired by the brotherhood, including disparaging comments about her personal sexual life.

It was as a result of these incidents that the union launched an investigation on the matter, leading to Brazeau’s termination. The trial judge found the incidents came about as a result of Pynaker’s rejection of Brazeau’s romantic advances, and that each constituted acts of sexual harassment.

The court ruled his conduct was not “at the most serious end of the continuum of sexual harassment… I conclude it falls in the middle of the spectrum.”

The trial judge ruled further, however, that in this “difficult case” the company was not justified in dismissing Brazeau. His conduct, ruled the court, did not amount to a complete breakdown in the employment relationship because:

•the harassment was not at the serious end of the spectrum;

•Pynaker, the most affected person by the events, was not demanding his dismissal; and

•Brazeau was a long-term and loyal employee with an otherwise clean disciplinary record.

Therefore he was entitled to a clear warning that if his harassment continued it would lead to his dismissal. Brazeau was given an award amounting to 24 months’ notice, but his claim for aggravated or punitive damages was rejected. The trial court’s ruling was upheld on appeal by a majority decision of the British Columbia Court of Appeal.

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