Over the last few years,
decision-makers across the country have regularly been called
on to interpret the meaning of "harassment". Certain
principles have emerged from the main cases. Decision-makers
usually look at the situation objectively. In other words, they
don't typically put much emphasis on subjective elements, such
as the perception of the victim.
In this case, two employees developed a friendship both in the
workplace and online through Facebook. The two employees were L, a
34 year old man and H, a 19 year old woman. Over time, it appeared
that L was not only attracted to H, but was also falling in love
with her. These feelings were not reciprocated.
The content of their Facebook conversations clearly indicated
that the relationship between the two co-workers appeared
flirtatious at first. However, over time L's comments towards H
became increasingly sexual. This made H feel uncomfortable. H told
L that his sexual comments were unwelcome and troubling to her.
The events culminated when L brought H flowers to work. He also
grabbed her without her consent so that she could "smell
H filed a harassment complaint against L. She requested that she
no longer work with him and asked that he cease communicating with
Following the employer's investigation, L's employment
was terminated for sexual harassment.
The arbitrator recognized that L's behaviour towards H
constituted sexual harassment. He also noted that the employer had
a duty to protect the safety of its employees in the workplace.
However, the arbitrator reinstated L and replaced the termination
with a one year suspension.
In reaching this conclusion, the arbitrator took into account a
number of mitigating factors. One such factor was the victim's
wishes and perception:
when filing her complaint, H did not wish for L to be
H was not truly offended by the sexual content of the messages
because she recognized that it was [OUR TRANSLATION] "the
way guys write".
In sum, the arbitrator concluded that although L's behaviour
was highly reprehensible and constituted harassment, it did not
This decision suggests that the perception of the victim of
harassment may be an element to be considered when determining the
appropriateness of the sanction imposed on the harasser. This
analysis appears to go against the main cases involving harassment
in the workplace. Time will tell if this angle of analysis will be
followed by other arbitrators. In the meantime, employers in all
provinces should be aware that the perception of the victim may be
viewed as a mitigating factor in disciplinary cases involving
harassment in the workplace.
This article was reprinted with permission from Northern
Exposure, a blog written by lawyers in the Labour, Employment
and Human Rights Group at the law firm of Fasken Martineau and
produced in conjunction with HRHero.com. You can read more Northern
Exposure blog posts at http://blogs.hrhero.com/northernexposure. You
can also find Fasken's weekly bulletin, "The H
R Space" at http://www.fasken.com/en/the-hr-space. Fasken
Martineau is one of the world's leading international business
law and litigation firms.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).