Intoxication does not excuse workplace sexual harassment
John went to a company conference in the United States for a weekend along with employees from across Canada. For the first time he met Sue. After a company dinner about 15 of them went out for drinks and drank quite a lot. The only one who didn’t drink was Julie. John, Sue and Julie shared a cab home. Julie was sitting in the front. John suddenly leaned over in the back of the cab and kissed Sue’s neck and kissed and licked her face. Sue pushed him away and told him to stop. Julie saw some of what was going on and also told John to stop. Once they got back to the hotel Sue invited John and Julie up to her room. When Julie stepped out for a minute John ressumed his advances. Sue told him to stop and explained that she was married and noted that they worked together.
After Julie and John left Sue invited another gentleman to her room for a short time. John was downstairs near the lobby having a smoke and saw the gentleman leave with a happy look on his face. He promptly texted Sue stating that he couldn’t believe that she slept with someone else other than him and said “I hope your husband is going to be very happy.” Sue became concerned that the gentleman’s visit was going to be reported to her husband and spoke to John on the phone and then at her hotel room door. John kept making advances and screaming at her asking why she wouldn’t sleep with him. He pushed her against the door and tried to kiss her again. The next morning she told John at breakfast that he needed to forget everything that happened the night before. Sue did not report John’s conduct to the employer because as she said she was ashamed and embarrassed. Six weeks later a meeting was called where John and Sue would need to be in the same place again and Sue became distressed. At that point she filed a complaint with the employer for sexual harassment. John was eventually terminated and the employer took the position there was just cause and did not give him any pay in lieu of notice.
John filed a complaint with the Ministry of Labour and an investigation took place. The investigating officer decided that most of Sue’s complaints were true. The delegate found that John had tried to kiss sue in the back of the cab and in her hotel room. The officer did not question whether or not the employer should have fired John but whether what he had done, in the circumstances, warranted him not receiving the minimum termination payments required by the Employment Standards Act. He decided that the employer should have paid termination pay because “the incident was fueled largely by the excessive alcohol intake of everyone that night” and that their lack of sobriety “impaired both the judgement of the individuals on the night and their ability to accurately recollect the events of the night.” The decision was appealed and fortunately reversed. The final judgement said that alcohol consumption does not excuse or mitigate the seriousness of an employee’s sexual harassment.
John should feel very lucky that he wasn’t charged with a criminal offense. He could have landed with a criminal record rather than just the loss of a job. I suspect that the original officer thought that the employer should not be feeding its employees copious amounts of booze and then failing to pay termination pay when those drunk employees misbehaved. The decision was more about punishing the employer than rewarding John. It was still the wrong decision but thankfully, at the end of the day, justice prevailed.
