Dupont v Ag Growth International Inc. (AGI-Westeel), 2021 ABPC 118 is a recent Alberta Provincial Court decision by Judge G.G. Yake out of Red Deer. This case involved a 46 year old welder with 9.5 years of service and a clean disciplinary record, who engaged in a single act of sexual harassment. The court found there was no just cause for termination in the circumstances and awarded 10 months’ reasonable notice of termination.
This case is important because it adds to the catalogue of cases which help predict whether or not someone’s act(s) of sexual harassment are bad enough on their own or cumulatively to amount to just cause for termination of employment.
The Facts In Dupont
Rather than summarizing them myself, I will just quote the pertinent facts directly from the factual summary of Yake, J:
[79] With regard to the events that occurred on January 9, I find the following facts:
(a) before January 9 RT and Mr. Dupont were workplace acquaintances, but they were not good friends;
(b) at about 8:00 a.m. on January 9 Mr. Dupont asked RT to go on a date with him and in reply she said “maybe”;
(c) at about 9:25 a.m. on January 9 Mr. Dupont approached RT while they were both working at the Westeel facility in Olds, Alberta and asked her if she was chilly and said “Now that you’re single we can go on a date”;
(d) Mr. Dupont then reached over and lifted RT’s hoodie and T-shirt, exposing the area of her body extending from her belly-button to her bra, including her bra;
(e) Mr. Dupont did this because he wanted to flirt with and “hit on” RT, and he wanted to show her that he “liked her a lot”;
(f) Mr. Dupont did not intend to lift RT’s T-shirt when he lifted her hoodie;
(g) Mr. Dupont did not intend expose any part of RT’s body when he lifted her hoodie;
(h) Mr. Dupont’s actions caught RT by surprise, and caused her to be anxious, distressed and embarrassed, and caused her to fear Mr. Dupont;
(i) RT immediately swore at Mr. Dupont and slapped his hand away;
(j) Mr. Dupont then immediately walked away from RT;
(k) RT quickly reported this event to Westeel Production Manager Steve Ricklefs and provided him with her written statement found under Tab 6 of Exhibit 1, and then met briefly with Mr. Ricklefs, Mr. Arthur and Mr. Hawman, and was advised of the steps that would be taken by Westeel to investigate this event as an incident of harassment;
(l) when RT met with Mr. Ricklefs, Mr. Arthur and Mr. Hawman she told them that she did not want to see Mr. Dupont lose his job, but she did not want to have further contact with him; and
(m) shortly after this incident Mr. Dupont was sent home from work.
Analysis and Conclusion in Dupont
The court concluded that the plaintiff employee had engaged in sexual harassment, noting as follows:
[83] Mr. Dupont’s actions, even though brief and isolated, constituted intentional and nonconsensual touching of RT for a sexual purpose (i.e. flirting). It was unwelcome conduct that embarrassed and humiliated RT, and detrimentally affected her in her work environment. It was “sexual harassment” as judicially defined and as defined in Westeel’s Discrimination and Harassment Program document.
[84] There is no place for sexual harassment in the workplace or elsewhere, and employers have a duty to protect all of their employees from that misconduct. However, a finding of misconduct does not, by itself, give rise to just cause; the question is whether, in the circumstances, Mr. Dupont’s behavior was such that the employment relationship that he had with Westeel could no longer viably subsist.
The court went on to find that although the single incident was serious, Westeel had many other potential options for discipline that were short of termination in the circumstances, but it did not even consider those options. The court concluded that summary dismissal for case was not a “proportionate response” to the single incident of sexual harassment.
My Take
This case would have been a difficult one for a Judge to decide I think.
This was a single act of sexual harassment, which had a physical element. Physical touching is usually considered at the more severe end of the spectrum of sexual harassment. The acts referred to in many sexual harassment cases are objectively worse than what happened this one, but this did have a physical element and that is automatically considered quite serious.
However, in this case it was a long-standing employee with a clean disciplinary record, and those factors weigh strongly against a finding of just cause. I would suggest that this case could have gone either way, and if this employee were either short-service or had any prior discipline, it likely would have.
Guidance
If you are an employee who is experiencing harassment at work, or whose employment is being terminated for alleged harassment, let us help you find the best path forward.
If you are an employer who is dealing with a harassment situation amongst employees in the workplace, let us help you navigate the situation before you make any big decisions.
The Dupont case can be found at the following link on CanLii: https://www.canlii.org/en/ab/abpc/doc/2021/2021abpc118/2021abpc118.html?resultIndex=1
