THE EMPLOYERS' EDGE
To the surprise of NO ONE, using Vulgarity against a Co-worker even one time, was one time too many
A recent decision by Alberta’s Court of Queen’s Bench has provided support for employers who act swiftly in terminating an employee who has engaged in verbal and sexual harassment. The case supports the notion that immediate for cause termination is appropriate for acts of unprofessional and harassing behaviour.
In Watkins v Willow Park Golf Course Ltd, 2017 ABQB 541 (CanLII), the plaintiff (“Mr. Watkins”) was employed by the Willow Park Golf Course for almost 13 years as the Golf Course Superintendent. In his role he had thirty-seven (37) direct reports, most of which were seasonal employees. At the time of his termination Mr. Watkins was 61 years of age and did not have a written contract of employment. Ms. Li was a grounds crew worker since 2005 and was promoted to full-time in 2007.
In or around 2011, Mr. Watkins began to have romantic feelings towards Ms. Li and often expressed those feelings, to the displeasure of other staff, through various employment benefits. Mr. Watkins provided Ms. Li a desk in his office area, a preferred parking space, allowed her to come to work 1.5 hours later than other staff, and promoted Ms. Li to Assistant Superintendent. Unfortunately for Mr. Watkins, the romantic feelings were not reciprocated.
By July 2011 Ms. Li made it clear that she did not wish to have anything more than a professional relationship with Mr. Watkins. Once Mr. Watkins was made aware of Ms. Li’s feelings he engaged in behaviour that was both harassing and unprofessional, which the law viewed as amounting to just cause for termination. Mr. Watkins sent drunken text messages to Ms. Li in the middle of the night and sent emails stating “When you came in this morning, WOW, you looked great made my day, week too thanks”. Mr. Watkins also admitted to asking Ms. Li whether she watched pornography. These messages and actions were viewed by the Court as completely unprofessional and failed to respect Ms. Li’s request to maintain a professional relationship.
Once Mr. Watkins attempts to woo Ms. Li were completely rebuked he began to exhibit aggressive behaviour. On at least one occasion the Court found Mr. Watkins referred to Ms. Li as a “C**t” or a “Fu***ng c**t”. Mr. Watkins stated this occurred on a single occasion and described this speech as “man talk” or “locker room talk”. The Court, rightfully, determined that even once is once too many with respect to this language and verbal aggression.
The above example of verbal harassment was the worst example, but not the only example. Mr. Watkins became increasingly volatile according to Ms. Li, yelling and cursing at her regularly. Mr. Watkins couched his behaviour in performance evaluation but it was clear to other co-workers that his behaviour went well beyond performance management. In determining that just cause termination was appropriate the Court noted on multiple occasions that Mr. Watkins failed to realize the wrongs of his actions. The Court was unimpressed by his continued and repeated defense of his clearly inappropriate behaviour. Mr. Watkins characterized his words as “locker room talk” and characterized questioning Ms. Li about her interest in pornography as “friendly”. Mr. Watkins’ failure to recognize these words and actions as wrong certainly played a role in the Court’s decision to uphold just cause for termination.
The Court also provided interesting commentary on the defendant’s investigation of the harassing behaviour. The plaintiff was provided a very minimal opportunity to respond to written allegations of Ms. Li and he denied them. Without any further opportunity to respond and without interviewing Ms. Li the decision to terminate was made. The Court described this investigation as inadequate. The inadequacy however did not affect the outcome of the decision because many of the allegations were confirmed during direct and cross examination at the trial. In other words, a proper investigation would have confirmed the allegations to a sufficient degree to support the termination. The employer should consider themselves lucky in this situation. Ontario employers are required by statute to investigate claims of workplace harassment and it is not advisable to substitute the trial process as the investigation. This is both costly and inherently risky as the employer will no longer fully control the circumstances of the investigation.
This decision is a positive one for employers and for employees that are the targets of verbal and sexual harassment. Despite having no prior disciplinary record the Court recognized the seriousness of the behaviour and supported the employer’s decision to terminate for cause. In cases of workplace harassment the individual circumstances will dictate the appropriate legal outcome and it is imperative that a thorough and confidential investigation be completed. The CCPartners team has the expertise and experience required to assist your business in conducting workplace investigations and to guide the handling of employees who have committed acts of harassment.
For even more information, listen to Episode 4 of the Lawyers for Employers podcast on SoundCloud or iTunes.