By Ron Minken, Tanya (Tejpreet) Sambi and James Moon
A recent Provincial Court of Alberta decision, AG Growth International Inc v. Dupont, 2021, which found that the employee (“Mr. Dupont”) was wrongfully dismissed was overturned by Justice Little and allowed the employer, AG Growth International Inc. (“Westeel”), to appeal the Provincial Court’s decision. Justice Little found that the trial judge made an error of law in reaching his decision because the trial judge erred in determining that sexual assault in this particular case amounted to low end of the seriousness spectrum of misconduct.
Mr. Dupont and the victim of sexual assault (“RT”) were workplace acquaintances at Westeel. On January 9, 2019, at about 8:00 a.m, Mr. Dupont asked RT to go on a date with him and in reply, RT said “maybe.” At about 9:25 a.m. on January 9, 2019, Mr. Dupont again approached RT and lifted RT’s hoodie and T-shirt, exposing the area of her body from her belly-button to her bra. Mr. Dupont testified that he did not intend to lift RT’s T-shirt when he lifted her hoodie, nor did he intend to expose any part of RT’s body when he lifted her hoodie.
Westeel investigated on the matter and after hearing Mr. Dupont’s response to the allegations, the investigators reached a joint decision to termination Mr. Dupont’s employment. Although the investigators were aware of disciplinary actions other than termination of Mr. Dupont’s employment, they reached their conclusion to terminate Mr. Dupont with just cause on the ground that Mr. Dupont violated Westeel’s zero tolerance policy, which prohibits “unwanted touching” described in Westeel’s Discrimination and Harassment Program.
The trial judge held that although Mr. Dupont’s actions constituted intentional and nonconsensual touching of RT for a sexual purpose, a finding of misconduct does not, by itself, give rise to just cause and must be determined by an objective, contextual and proportional analysis. The trial judge found that the brief and isolated nature of Mr. Dupont’s misconduct to be at the low end of the spectrum of seriousness and therefore, found that Westeel’s decision to terminate Mr. Dupont with just cause was not a proportionate response to Mr. Dupont’s transgression.
To determine whether there is just cause to terminate requires an analysis of the proportionality of the employer’s response to the misconduct. This analysis begins with a determination of the seriousness of the misconduct.
Justice Little found that the trial judge erred on concluding that the intentional and unwanted touching for a sexual purpose, constituted sexual harassment at the low end of the spectrum of seriousness. Justice Little cited the Alberta Court of Appeal case, Calgary (City) v CUPE Local 37, that, “sexual assault, by its very definition, is a serious misconduct.” In particular, Justice Little noted that the trial judge’s conclusion that Mr. Dupont’s misconduct was at the low end of the spectrum of serious misconduct while at the same time in his decision noted that unwanted touching for a sexual purpose is the definition of sexual assault, was inconsistent and runs contrary to the Calgary v CUPE Local 37 Court of Appeal decision.
Justice Little overturned the lower court’s decision, which found that the termination for cause was disproportionate to the misconduct. Accordingly, the employee’s just cause for dismissal was found to be proportionate to the misconduct.
Sexual Assault Takeaways
It is crucial for employers and employees to recognize that sexual assault is serious misconduct and that the determination of the seriousness of misconduct must always start on the high end of the spectrum in sexual assault. Perpetrators of sexual assault at the workplace may be subject to just cause termination, regardless of whether the sexual misconduct was “brief and isolated.”
How Minken Employment Lawyers Can Help
If you require legal advice on how to hand a sexual harassment or sexual assault complaint in the workplace, contact us today to speak with one of our experienced lawyers or call us at 905-477-7011 for assistance prior to taking any steps that may expose you to legal liability.
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Please note that this article is for informational purposes only and does not constitute legal advice.
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