In a recent Provincial Court of Alberta decision, Dupont v. Ag Growth International Inc. (AGI-Westeel), 2021 ABPC 118, the trial judge ruled that just cause termination was a disproportionate measure following a workplace investigation where the dismissed employee was found to have sexually harassed a female colleague. The employer subsequently appealed this decision to the Alberta Court of Queen’s Bench, who allowed the appeal.¹

The Incident

 At the time of his termination, the respondent² worked for his employer for nine and a half years. He had no prior history of misconduct or conflict with other co-workers. One January morning, the respondent asked the complainant, a female colleague, out on a date, to which she replied, “Maybe.” Approximately an hour and a half later, the respondent approached the complainant at work, asked whether she was chilly and said, “Now that you’re single, we can go on a date.” The respondent then reached over and lifted the complainant’s hoodie exposing her stomach area up to her bra. The complainant swore at the respondent and slapped his hand away. Following this encounter, the complainant reported the incident to her employer and provided a written statement. The employer conducted a brief investigation that culminated in a finding of sexual harassment and the respondent’s termination. Subsequently, the respondent sued his employer for wrongful dismissal.

The Trial Decision and the Appeal

The trial judge found that the respondent lifted the complainant’s hoodie and T-shirt because he wanted to “flirt” with the complainant, “hit on” her, and show her that he “liked her a lot.” The judge further found that the respondent did not intend to lift her T-shirt or expose her body when he lifted her hoodie.

The trial judge found that the respondent’s actions, although brief and isolated, were non-consensual touching for the sexual purpose of flirting. He found that the respondent’s actions constituted sexual harassment as judicially defined and as per the employer’s discrimination and harassment policies.

The trial judge went on to reason that, although the respondent sexually harassed the complainant, the misconduct fell at the low end of the spectrum of seriousness. This analysis formed the basis for the trial judge’s finding that termination with cause was a disproportionate consequence relative to the misconduct. He found that less severe disciplinary action was available in the employer’s harassment policies but was not considered. The trial judge awarded the dismissed employee damages equal to 10 months’ wages.

The employer subsequently appealed the trial judge’s ruling to the Alberta Court of Queen’s Bench. The higher court judge disagreed with the trial judge’s analysis. He found that the trial judge had minimized the respondent’s conduct, and stated that:

A finding that intentional and unwanted touching for a sexual purpose … constitutes sexual harassment at the low end of the spectrum of seriousness ignores our Court of Appeal’s determination that sexual assault is at the high end of that spectrum.³

The appellate judge relied on the Alberta Court of Appeal’s ruling in Calgary (City) v. CUPE Local 37, 2019 ABCA 388, which affirmed that “… harassment with a physical component constitutes a form of sexual assault and is among the most serious forms of workplace misconduct…”⁴.

Notably, the judge on appeal dismissed the argument put forward by the respondent’s lawyer that the conduct in question did not constitute sexual assault. The appellate judge noted that the trial judge did not find that the lifting of the complainant’s hoodie was inadvertent; rather, the trial judge had found that the respondent did not intend to expose the complainant – even though this could be considered “a foreseeable consequence of lifting a shirt.”

While the higher court did not opine on whether, in contrast to the finding of the lower court, the conduct in question warranted just cause termination, the judge noted that some of the factors that would go into this analysis, such as a lack of prior misconduct, may have been given too much weight by the trial judge since he had minimized the seriousness of the conduct.

 Takeaway

This decision should serve as a signal to workplace investigators and HR managers that complaints of unwanted touching for a sexual purpose should always be treated seriously. This is true even in the case of a single incident by a long-standing employee with no prior history of misconduct. The decision also shows how easily sexual harassment can cross the boundary into being considered sexual assault. Further, the fact that the respondent did not intend to expose the complainant was not determinative, given that there was non-consensual touching for the sexual purpose of flirting.

Sexual harassment is broader than sexual assault and encompasses a wide range of behaviours, examples of which should be included in your organization’s harassment and sexual violence policies. The physical element that defines a finding of sexual assault should also be noted and the seriousness highlighted. Further, workplace policies should specify possible disciplinary actions that may be taken in the event of a finding of sexual harassment/assault up to and including termination.

Ultimately, just cause termination decisions are best preceded by a thorough workplace investigation. The decision to summarily dismiss an employee requires serious consideration and consultation with legal counsel.

¹ AG Growth International Inc. v Dupont, 2021 ABQB 663. 

² For ease of reference, I refer to the dismissed employee and the woman he was found to have sexually harassed according to the roles they would have had in the workplace investigation; that is, as the respondent and complainant, respectively.

³ AG Growth International Inc. v Dupont, 2021 ABQB 663 at para 10.

⁴ Calgary (City) v CUPE Local 37, 2019 ABCA 388 at para 31.

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