WestJet worker claims unjust dismissal after termination over comments about childbirth, breastfeeding
A 23-year veteran WestJet employee who repeatedly questioned female coworkers about their sexual development and that of their children was engaging in sexual harassment, the Federal Court of Appeal ruled on Jan. 30, 2026.
Justice Mary Gleason set aside a Canada Industrial Relations Board decision that found the employee's conduct, while inappropriate, did not constitute sexual harassment—a conclusion the court called “unreasonable” and “contradictory” to well-established law.
WestJet terminated T.H. for engaging in harassment and sexual harassment and for failing to follow the company's Code of Business Conduct, Respect in the Workplace, and Workplace Violence Prevention Policies.
‘Unwelcoming environment’ at WestJet
The employee, identified as “T.H.”, had a discipline-free record and received commendations throughout his career. Yet WestJet terminated him for cause in 2021 after an investigation concluded he solicited information about colleagues' sexual development, asked intrusive questions of a sexual nature, shared inappropriate intimate details about his family, demonstrated physical intimidation, and retaliated against female colleagues.
T.H. testified he came from a family where sex and sexual development were regularly discussed. He claimed he was interested in childbirth, female sexual development, and breastfeeding details, and admitted he often raised these matters with female coworkers.
Three women testified about T.H.'s conduct. When “K.S.” joined the department, two former coworkers warned her about him. The women described repeated comments and questions about their sexual development and their children's development. K.S. said T.H. commented on the size of her breasts.
The women sometimes told T.H. his comments were unwelcome and at other times indicated displeasure by walking away to avoid discussions, yet he failed to correct the behaviour.
The Board found his conduct created "an uncomfortable and unwelcoming environment and were inappropriate in the workplace."
Contradiction about harassment
The Board concluded T.H.'s behavior was inappropriate but not sexual harassment, creating what the court identified as a logical flaw central to the Board's reasoning.
In its decision, the Board found the WestJet worker asked "intrusive and inappropriate questions of a sexual nature."
But 10 paragraphs later, it stated: "None of his comments were sexual in nature or intent, and no one took his comments in a sexual manner whatsoever. He was not soliciting information for a sexual purpose but was instead soliciting information and having discussions relating to the 'miracle of birth,' childhood development, puberty and adolescent development."
The court ruled these findings were “flatly contradictory” on a key issue central to determining whether sexual harassment occurred. The inconsistency alone was sufficient to render the decision unreasonable “as it constitutes a logical flaw central to the Board’s reasoning,” said the court.
Case law on sexual harassment
The court ruled the Board's conclusion contradicted well-established case law defining sexual harassment.
“The maker of offending comments need not have been motivated by the desire to engage in sexual relations with those to whom the comments are made for the comments to constitute sexual harassment,” said the court.
“Nor does a determination of sexual harassment require that the maker of a series of offensive comments appreciate they are inappropriate or that the person to whom they are directed object to them, provided that, when viewed objectively, the impugned comments are of a sexual nature and are offensive.”
The court found T.H.'s repeated comments and questioning about coworkers' sexual development and their children's development, plus comments about a coworker's breasts, met the definition.
The case returns to the Board for redetermination of T.H.'s unjust dismissal complaint in accordance with the court's findings on sexual harassment.
