Sexual harassment in the workplace can justify an employee’s immediate and swift termination, for cause (i.e., no entitlement to any severance pay).
While all sexual harassment is, of course, serious, sexual harassment is judicially analyzed in a spectrum – the more serious the misconduct, the more likely it justifies termination for cause, rather than suspension, reprimand or lesser punishment.
For example, flirtatious or sexualized comments may be unwelcome and annoying, in addition to being entirely inappropriate in the workplace, but they may not escalate to point of justified abrupt termination for being grossly inappropriate, rather than another form of discipline, rehabilitation strategy or other alternative.
In this case, the texts by the male co-employee to his female counterpart initiated as fairly innocuous, or subtly sexualized, but they eventually escalated to more blatant and readily apparent sexualized behaviour, such as sending texts containing pictures of penises downloaded from the Internet. The female co-worker did not complain initially, trying her best to manage the difficult situation.
Ultimately, the male co-worker showed the female co-worker a picture of his own penis on his ‘phone.
That was it. The female co-worker complained to the employer. The employer fired the male employee, for cause (i.e., paid nothing for severance or pay in lieu of notice), after conducting an investigation.
The male employee grieved his termination, alleging it was wrongful and that he was entitled to severance, etc.
Notably, the male employee was a long-service employee with a very good disciplinary record.
The arbitrator held that the male co-worker had:
- engaged in a patter of escalating misconduct that was serious and grossly inappropriate in the workplace;
- had not accepted responsibility for his misconduct; and
- demonstrated strained, if any, remorse.
So, sexual harassment in the workplace is treated seriously and can support a termination, for cause.
Investigations by employers should be conducted for sexual harassment complaints, and conducted properly, to support the allegation of cause.
In this case, the escalating behaviour, culminating with showing his co-employee a picture of his own penis, was justifiable cause for immediate termination.
Don’t do that.
Calgary (City) v. CUPE, Local 37 (Mossman Grievance)