Inappropriate workplace behaviour ‘dangerous to your career’

Employment/Labour /
Jeffrey M. Andrew
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By Tony Poland, LegalMatters Staff • Recent court rulings demonstrate the consequences that inappropriate behaviour in the workplace can bring, says Toronto employment lawyer Jeffrey M. Andrew.

“It is important for those in the workforce to understand that the employment world has changed. There is much less tolerance for behaviour such as sexualized banter or any form of non-consensual touching, and rightly so,” says Andrew, a partner with Cavalluzzo LLP. “It can be extremely risky for people to engage in this type of conduct. Employers are essentially compelled by law to take a much stricter approach to these things. In the absence of someone consenting, it will be dangerous to your career.”

He says employers have become increasingly cautious when it comes to allegations of misconduct in the workplace. 

“They will look out for the interests of the complainants and the interests of their business,” says Andrew. “If they fail to address a concern, they can face a lawsuit or an occupational health and safety or human rights complaint. So, they tend to be very strict.”

Manager terminated after slapping co-worker

He used Render v. ThyssenKrupp Elevator (Canada) Limited as an example of what could happen when boundaries are crossed. In the Superior Court ruling, Justice William S. Chalmers found the firm was justified in terminating a long-serving manager for cause after slapping a female subordinate on the buttocks.

The manager and the employee had engaged in bantering in the past and the workplace had a “joking environment,” court heard.

However, while the woman “may have participated in the jokes, this does not mean she consented to being touched on a sexual part of her body,” Justice Chalmers ruled.

He noted that slapping the woman “on the buttocks in the presence of the other male workers is very serious and unacceptable conduct.” 

Court was told the manager characterized the incident as “a joke that went badly.”

“Even in a joking environment there is a line that cannot be crossed, and that line includes physical touching without consent of a sexual and private part of someone’s body. There is no place for any conduct which could result in a person feeling demeaned or disrespected,” he found.

Not entitled to common law damages

The Ontario Court of Appeal upheld the termination and ruled the manager was not entitled to common law damages. However, the court found that his behaviour did not constitute “wilful misconduct” and he was entitled to the minimum severance entitlements under the Employment Standards Act, 2000 (ESA).

Andrew, who was not involved in the case but comments generally, says his firm frequently deals with workplace investigations “where things such as inappropriate harassing or allegedly demeaning or sexually harassing conduct occurs.

“In this particular case, the court certainly didn’t characterize the conduct as a sexual assault but they didn’t think it made a difference,” he tells LegalMattersCanada.ca. “It was certainly found to be demeaning and inappropriate.”

In his ruling, Justice Chalmers notes that “whether the employer is justified in dismissing an employee for cause requires an assessment of the context of the alleged misconduct to determine whether the misconduct violates an essential condition of the employment contract, breaches the faith inherent in the work relationship or is fundamentally inconsistent with the employee’s obligations to his employer.”

‘Contextual analysis is the principle of proportionality’

“Underlying the contextual analysis is the principle of proportionality,” he writes. “An effective balance must be struck between the severity of an employee’s misconduct and the sanction imposed.

“The contextual analysis requires an examination of the particular facts and circumstances and considers the nature and seriousness of the employee’s conduct to determine whether it is sufficiently egregious so as to violate or undermine the employment relationship.”

Andrew says contextual analysis is a must. 

“But most employers don’t actually do it very well,” he says. “I’ve seen cases where it was completely the wrong approach to discharge somebody. There were alternatives that would have been more conducive to a healthy workplace. But employers tend to be extremely strict when they address these workplace issues.

“Just because an employee did something inappropriate doesn’t mean it amounts to grounds to discharge for cause,” Andrew adds. “It is essential to balance what happened with the appropriate penalty. That is the sensible approach, although many employers fail to adopt it.”

Lessons to be learned from court decision

He says along with the need to do a contextual analysis, there are other lessons to be learned from the judgment. For example, just because sexual banter and a joking atmosphere may be present in the workplace, it doesn’t mean all conduct will be tolerated.

“I see cases where people say, ‘Well, we all do this.’ That context isn’t necessarily going to be a defence. When you do something that somebody objects to, there’s going to be a focus on your alleged inappropriate behaviour,” he says. “The fact that there is a bantering, playful atmosphere isn’t necessarily going to help you. 

“In this particular case the complainant said, ‘Yes, I participated in some of the joking but that’s because I didn’t want to be ostracized,’” Andrew adds. “But when you cross the line with someone, the fact that they joked around before isn’t really going to be very helpful to you. That joking atmosphere doesn’t give the right to do whatever you want.”

While workplaces are legally required to have harassment and discrimination policies, he says both workers and employers can be guilty of failing to give the rules the full weight they deserve. 

‘Out of sight out of mind once the training is over’

“People will be trained on these policies if the employer is sensible but, for many, it is out of sight out of mind once the training is over,” Andrew says. “This just underscores that you can be making a big mistake if you don’t regularly review those policies so employees understand what they mean and can adjust their behaviour accordingly.”

Even if the employer doesn’t consistently enforce the policies, an offender wouldn’t be able to use that as an excuse to avoid discipline for bad behaviour, he says. 

“That is because your case may be different than things that happened in the past,” says Andrew. “You could certainly raise the fact that the employer was imperfect, but it won’t necessarily save you.”

Depending on the circumstances, an apology after an indiscretion can be helpful but it will not guarantee you will be forgiven, he says.

Apology not always enough

“In this case, the complainant said she didn’t think the apology was sincere,” Andrew says. “Obviously it is going to be harmful to your case if you fail to express your regret for doing something that was inappropriate. But an apology is not a panacea. During their investigation the employer may decide that quite apart from the apology, the behaviour itself requires a penalty.”

He says humour is subjective. What one person finds funny may be insulting to another. What one worker thinks is a playful slap could be considered assault to the person on the receiving end, Andrew says.

“It is prudent to keep working relationships at a distance,” he says. “Certainly, slapping somebody’s behind is just a bad idea. Essentially, it is an assault. Not necessarily a sexual assault, but it could be seen that way. But apart from that, it certainly would be viewed as demeaning.

“The theme is to go cautiously. It is best to just do your work and not engage in behaviour that could be seen as inappropriate – if you value your job.”

More from Cavalluzzo LLP:

Appeal court restores clarity around illegal termination clauses