Employer challenges claim of worker who ‘sexually harassed subordinate’

B.C. appeal court decides if he was unfairly dismissed

Employer challenges claim of worker who ‘sexually harassed subordinate’

The Court of Appeal for British Columbia recently decided on an employer’s appeal, which challenged a lower court’s decision that a worker was unfairly dismissed.

The employer argued that the worker committed sexual harassment toward a subordinate, which the lower court agreed with, but said it was insufficient for a valid dismissal. The company then challenged the decision with an appeal that also questioned the damages awarded to the worker.

Sexual harassment caught on workplace CCTV

The worker, an experienced bakery professional from South Korea, faced dismissal from his employer. He took on the role of head baker at the workplace, where he was joined by a female co-worker who reported directly to him.

According to records, on 9 November 2020, the worker and his co-worker were scheduled to work together during a shift from 12 p.m. to 6 p.m. Based on a review of the kitchen's CCTV footage, it was seen that the worker touched his co-worker on two occasions without her consent:

  • He lightly tapped her left shoulder and followed it with a brief open-hand pat on her upper back. This gesture occurred while he was discussing a therapeutic massage he had received the previous day;
  • A second incident happened around 5:00 p.m. During this period, the worker lightly tapped her in the buttock area while discussing the discomfort in his lower back.

The employer issued the first record of employment (“ROE”), which simply stated that the reason for issuing the ROE was “dismissal”. Later, the employer issued a second ROE to correct errors in the first ROE; the reason for dismissal was changed to “sexual harassment and bullying of female subordinate staff."

When the worker challenged his dismissal, a lower court ruled in his favour, stating that sexual harassment was insufficient for a valid dismissal. The employer then challenged the decision in the appeal.

The lower court's decision found sexual harassment was ‘insufficient’ for dismissal

In the original decision, the judge of the lower court found that the worker's conduct constituted sexual harassment. "Though the touching was brief, it was intentional, unwarranted, and non-consensual. It was a violation of [his co-worker's] bodily integrity and caused her emotional distress," it said.

The appeal court sided with the original judge's finding that the employer was unable to defend its dismissal.

"The employer has advanced three grounds to justify [the worker's] termination: his sexual harassment of [his co-worker], his dishonesty during the investigation of the harassment allegations, and his unwillingness to apologize and show contrition or remorse. Of these three grounds, the employer has only been able to establish the first one, i.e. that [the worker] sexually harassed [his co-worker] by briefly touching her on her shoulder, upper back, and buttocks."

Thus, the appeal court agreed with the lower court that "sexual harassment conduct alone did not warrant dismissal."

However, despite this decision, the employer’s appeal was still partly successful, specifically in relation to the awarded damages. The higher court said the original judge made an error in combining aggravated and punitive damages into a single award.

It explained that these two types of damages serve distinct purposes and require separate evaluations. And so, it ordered the amount to be corrected.

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