The defendant Marriott Hotels of Canada Ltd. terminated the
plaintiff Mr. van Woerkens from his management position due to his
alleged conduct at the company's holiday party. The defendant
alleged that the plaintiff and M, a young female subordinate, were
both intoxicated and dancing in a "sexually suggestive"
manner. It also alleged that during the after-party, the plaintiff
was seen inappropriately touching M in the bathroom. The defendant
argued the plaintiff's actions, combined with his dishonest
denial of the allegations during the subsequent investigation,
amounted to just cause for termination. The plaintiff denied that
he committed any of the alleged misconduct and sued for wrongful
The issue in this case was whether the evidence established the
plaintiff's misconduct on a balance of probabilities, and, if
so, whether the nature and degree of misconduct warranted
The Court found that the defendant had just cause for
termination. The Court concluded that the plaintiff had sexually
harassed M and was dishonest during the defendant's
investigation. The Court found that overall the plaintiff's
conduct had breached the faith essential to his working
relationship and that it "was fundamentally inconsistent with
the continuation of the employment relationship."
In supporting its decision the Court pointed to the following
The plaintiff's inappropriate touching of M clearly placed
the sexual harassment at the "serious" end of the
M was a subordinate of the plaintiff, and although she did not
tell him that his conduct was unwelcome, the plaintiff was aware
that she was highly intoxicated;
The plaintiff had jeopardized the respect and authority he
required to discharge his employment duties by engaging in
inappropriate sexual behaviour in plain view of other employees;
The plaintiff initially denied any misconduct but eventually
changed the characteristics of his response to coincide with
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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.
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