DATE: 19980827
DOCKET: C20511
FINLAYSON and CARTHY JJ.A. and THEN J. (ad hoc)
BETWEEN:
ALAN BANNISTER Plaintiff (Respondent)
- and -
GENERAL MOTORS OF CANADA LIMITED Defendant (Appellant)
J. Brett Ledger, Deborah Glendinning and Laura Friz for the appellant
Robert B. Reid and Michael McLachlan for the respondent
Heard: May 21, 1998
CARTHY J.A.:
[1] Sexual harassment in the workplace has been broadly defined by the Supreme Court of Canada in Janzen v. Platy Enterprises, [1989] 1 S.C.R. 1252 at 1284, per Dickson C.J. in the following terms:
Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self- respect of the victim both as an employee and as a human being.
[2] This appeal is about how that definition has application in the real life of a modern industrial plant and how, when incidents surface, it should be dealt with by management and, ultimately, the court.
[3] The appeal by General Motors is from the judgment of Dandie J. (1994), 8 C.C.E.L. (2d) 281, wherein he found that the respondent had been wrongfully dismissed from his employment and awarded damages in the amount of $119,510.41 plus prejudgment interest and costs.
[4] In 1970, the respondent commenced working as a patrol officer in the security department of General Motors at its St. Catharines plant and by 1980 he had been promoted to management and the rank of Sergeant. As such, he was the senior person in the security department on duty during the afternoon and night shifts and had a direct roll in measuring the performance and disciplining those working under him in the department. Women entered the security department at General Motors in the late 1970s and the majority of the female staff were students employed to work in the summer. Most of the summer students, and most of the complainants who gave evidence against the respondent, were between the ages of 18 and 23. At the time that the first of the complaints as to his conduct was made, the respondent was 49 years old.
[5] The original complainant was Trish Murray, a summer student who, upon leaving her employment in September 1990, registered a written complaint with the respondent's superior. The complaint listed these incidents:
* In 1989, the respondent placed his hand on her waist and pressed his face toward her in an apparent attempt to obtain a kiss. She turned away and he subsequently indicated his embarrassment over the incident; * In the summer of 1990, she made a gratuitous comment about her weight and he said in front of another employee "why don't you take your clothes off and we will be the judge of that"; * At a later date in the summer of 1990, she was reporting a small box fire and heard over the radio the words "whose box is on fire?" When she complained about the sexual innuendo in this remark to the respondent, he laughed at her; * On another occasion in 1990, he told a story in her presence of watching sexual interplay between a couple at a hotel and acted out "masturbation" and "giving head"; * On a Christmas occasion, the respondent told her he was going to "kiss you proper" and then tilted her chair back and kissed her on the mouth.
[6] This complaint prompted management to conduct other interviews of employees in the department, leading to the identification of further complaints, including the following: Kendra Snodden * On many occasions he asked her to sit on his knee and give him a kiss; * On other occasions he would give her a bear hug and make growling noises. She did not consider this sexual but she felt uncomfortable and intimidated; * He described pornographic movies using sexual gestures to portray the scenes. Laurie Jackson * While pretending to swab her eye to remove some dirt, he kissed her; * On another occasion she asked the respondent for a pencil and he said he would give it to her for a kiss. Kelly McNaughton * The respondent commented to co-workers on his ability to see her bra through a wet shirt; * On another occasion he placed his arm around her waist, squeezed her and said he would come to a party "if we could get rid of everyone else and we could find a quiet place to go at it"; * He typically stood close to her so that there was physical contact or he would position his face within two or three inches of hers. She felt uncomfortable and intimidated working for him. Iris Johnson * The respondent told her that he loved her and that his wife was sick and did not understand him; * He often stood too close and touched her back. She was uncomfortable in his presence.
[7] In the course of this investigation, management interviewed approximately 40 people, including male employees, and obtained further corroborating evidence of the specific allegations by the female employees set out above. The evidence was put before the respondent and he answered with a general denial and an allegation that the women were conspiring against him. Management decided that it had no alternative but to terminate the respondent's employment and he was given notice to that effect on October 24, 1990.
[8] All of these allegations, together with some additional complaints, were elaborated upon at trial and the defendant essentially denied each of them. However, the trial judge, in his reasons, made no significant findings of credibility, observing that, even if all of the allegations were proved, they did not constitute sexual harassment justifying dismissal. He appears to focus blame upon General Motors for not properly asserting their anti-harassment policy, improperly investigating the complaints, and permitting an atmosphere to develop within the security department in which everyone joined voluntarily in the offensive interactions. In my view, he erred in these respects, particularly in overlooking the respondent's role as a supervisor who, as the agent of the company, was responsible for overseeing what was occurring around him, and, if the allegations were true, should certainly not be setting an example as a sexual predator of young females. The trial judge's reasons display to me a concerted effort to excuse and apologize for the respondent's conduct, while trivializing the offences which were said to be occurring under his supervision and in which he was said to be directly involved. He further erred in rejecting from consideration evidence of inappropriate conduct that did not come to light until trial and did not form a part of the company's reasons for termination. Yet another error which directed his conclusion is that "wearing persistence" is a necessary constituent of sexual harassment in the context of considering termination of employment; that is, that there is no sexual harassment if each individual complainant was not continuously pursued after rejection.
[9] The essence of the trial judge's approach can be found at p. 287 of his reasons:
I think it fair to say that an inference might be drawn from the evidence of many of the witnesses that the plaintiff could be described as a womanizer or, more accurately, as an aspiring womanizer because there is not any evidence that he had any success in this regard.
[10] I will now elaborate upon each of these errors and then turn to the ultimate question of disposition. The absence of credibility findings suggests a new trial, but it is now eight years since these complaints were reported and a repetition of a trial extending over 16 days with 26 witnesses should be avoided if some other reasonable basis for concluding these proceedings is available.
General Motors' Sexual Harassment Policy
[11] A bulletin outlining General Motors' sexual harassment policy was permanently posted on the bulletin boards in the plant. That policy is reproduced below:
March 10, 1989
TO: ALL GENERAL MOTORS EMPLOYEES
GENERAL MOTORS OF CANADA LIMITED HAS HAD, FOR MANY YEARS, A WRITTEN AND WIDELY DISTRIBUTED POLICY ON NONDISCRIMINATION IN EMPLOYMENT. SEXUAL HARASSMENT, AS IN THE CASE OF HARASSMENT BASED ON AGE, RACE, COLOUR, CREED, OR NATIONAL ORIGIN, HAS LONG BEEN REGARDED AS A VIOLATION OF THIS POLICY.
ALL EMPLOYEES ARE EXPECTED TO DEAL FAIRLY AND HONESTLY WITH ONE ANOTHER TO ENSURE A WORK ENVIRONMENT FREE OF INTIMIDATION AND HARASSMENT. ABUSE OF THE DIGNITY OF ANYONE THROUGH ETHNIC, RACIST, OR SEXIST SLURS OR OTHER DEROGATORY OR OBJECTIONAL CONDUCT IS OFFENSIVE EMPLOYEE BEHAVIOUR. SEXUAL HARASSMENT ALSO INCLUDES UNWELCOME SEXUAL ADVANCES, REQUESTS FOR SEXUAL FAVOURS, AND OTHER VERBAL OR PHYSICAL CONDUCT OF A SEXUAL NATURE.
AS IN THE CASE OF OTHER OBJECTIONABLE CONDUCT WHICH IS CONTRARY TO THIS NONDISCRIMINATION POLICY, IF YOU BELIEVE YOU HAVE BEEN SUBJECT TO SEXUAL HARASSMENT, YOU MAY BRING YOUR CONCERNS TO THE ATTENTION OF EITHER YOUR IMMEDIATE SUPERVISOR, PERSONNEL DIRECTOR OR REPRESENTATIVE, OR YOU MAY UTILIZE APPROPRIATE AND EXISTING INTERNAL COMPLAINT PROCEDURES.
R.P. Migus Director St. Catharines Operations
C.K.Greenman Personnel Director St.Catharines Operations
(PERMANENT BULLETIN)
[12] In addition to being aware of the posted policy, Bannister attended a course on sexual harassment for supervisors given by General Motors in March of 1981 and may have attended another in 1988. The presenter's speaking notes for the conference that Bannister attended pointed out that sexual harassment could result in termination. These notes were displayed during the presentation by way of overhead projector. Bannister testified that he was aware that, as a supervisor, it was his responsibility to ensure that his subordinates did not engage in sexual harassment. He further testified that he was aware that female summer students were particularly vulnerable to sexual harassment.
[13] The trial judge's findings in this respect are at pp. 298- 299 of his reasons:
Accordingly, I find that General Motors had a sexual harassment policy in principle which had not been implemented in fact. Termination of employment, especially of an employee with 23 years service, which an excellent evaluation record who is earning $75,000 a year including benefits is an extremely serious matter and although it is conceded that General Motors was entitled to terminate the plaintiff's employment, before I would conclude that any termination on the grounds of sexual harassment was justified on the grounds of slurs, inappropriate language or the telling of jokes of a sexual nature, I would require that it be clearly established that every female security officer was clearly informed that inappropriate language and jokes of a sexual nature could be expected in the workplace; that female security officers had the right to choose to participate and engage in such language or jokes or to choose to object to the language and jokes; that if any female security officer did complain or object that they would be assured that their jobs were not in jeopardy; that it was not expected of any of them to suffer the embarrassment of inappropriate language or jokes or slurs of a sexual nature from either their fellow male employees or from their supervisors. The point being is that I find in the present case that General Motors did not empower its female security officers by clearly informing them that they need not suffer any inappropriate language, slurs or jokes of a sexual nature and that any complaints received would be treated with confidence. The last thing in the world that any male security officer or supervisor would want would be to have any complaint of or even of a suggestion of sexual harassment, substantiated or not, lodged against them or appearing on their record.
I find that it was not enough for General Motors to hold the sexual harassment seminars in 1980 and to post a bulletin on the notice board. I find the least that was required if the sexual harassment policy was to be policy in fact, not merely policy in principle, was to inform the female security officers as I have discussed and to have some sort of a structure to monitor the policy, whether that be monthly meetings of the supervisory staff to discuss the language and conduct of the members of the security staff or otherwise. In any event, I imagine that the atmosphere in the workplace at General Motors is very different at the present time than it was at the time of the termination of the plaintiff, that male employees are more circumspect and careful about what they do and say in the presence of female employees.
[14] These findings are clearly not responsive to the evidence of the respondent himself, who acknowledged his responsibility as a supervisor and confirmed his awareness of the posted policy. In my view, General Motors met its responsibility throughout and was entitled to rely upon supervisors to implement the policy. To say that more should have been done in these circumstances is simply to ignore the respondent's supervisory capacity and to make irrelevant apologies for his failure to implement and enforce the policy within his department.
The Investigation
[15] In his reasons at p. 285 the trial judge says, in part:
In the case of a supervisor, having regard to the nature of the complaint, the complaint can be of itself of as great importance and consequence to the future of a supervisor, hence a great deal of thought and effort needs to be devoted to searching out other alternatives to simply that of a full blown investigation involving approximately some 40 employees.
[16] The trial judge then goes on to discuss an alternative approach which I do not completely understand, but which seems to suggest a form of investigation which, if it revealed further complaints, would lead to warnings.
[17] The following is a description of the actual investigation. Bannister's supervisor, James David Wallace, testified that on September 11, 1990, Trish Murray contacted him to complain about Bannister. The next day, Murray met with Wallace and his superiors. Murray described Bannister's sexual conduct towards her. That same morning, Murray submitted a formal statement. Kendra Snodden was then interviewed, as her name had been mentioned by Murray. Snodden also described Bannister's sexual conduct towards her and provided a statement the next day. Their interviews led to interviews of other employees. Interviews were commenced by asking whether the person had any information to provide with respect to a human rights or sexual harassment complaint. Bannister's name was not raised first by the interviewers; rather, they waited to see if the employee would mention Bannister on their own. Notes were taken of the interviews and a number of witnesses provided statements.
[18] At the time of his interviews during the investigation, and at trial, Bannister flatly denied having had sexual contact with any employee or of having attempted to have sexual contact. He denied having sexually harassed any employee. Although he denied any wrongdoing, he recalled some incidents mentioned by the complainants in a different light and did not feel that his conduct constituted sexual harassment. He was interviewed four times prior to being terminated by General Motors. Bannister testified that he had been given every opportunity to state his side of the story in the investigation and agreed that anyone he had asked to be interviewed had been interviewed. Bannister's superiors testified that they had not believed that he was being truthful in his interviews. They believed the complainants were telling the truth. Bannister's superiors concluded that termination for cause was the appropriate remedy given the information before them and Bannister's denials of his conduct.
[19] Finally, following the notice of termination, the respondent was given a further opportunity to protest his termination under General Motors Open Door Policy.
[20] In Robichaud v. R., [1987] 2 S.C.R. 84, the Supreme Court of Canada confirmed the exposure of an employer to liability for a supervisor's actions under the Canadian Human Rights Act, S.C. 1976-77, Chap. 33 and, in doing so, observed that an employer who responds quickly and effectively to a complaint may avoid liability or not be liable to the same extent as an employer who fails to take such steps. The exposure is the same under the provincial statute governing General Motors.
[21] In my view, General Motors acted with care, responsibility and sensitivity to the initial complaint. When further complaints were unearthed and the respondent replied with a general denial, they were entitled, as they did, to make a credibility assessment. Having been satisfied that the complaints had substance, they could not meet the responsibility of an employer by keeping their agent in his employment as a supervisor. They had no reason to believe that his conduct would change and, on any alternative to termination, would be leaving the female employees exposed to the continued abuse. Of course, having arrived at the conclusion that termination was necessary, it remained necessary for General Motors to establish at trial that the complaints did have substance and justified the termination. The Failure to Make Credibility Findings
[22] In my view, the trial judge seriously misdirected himself in establishing a formula for the resolution of the issues raised in this case.
[23] At p.300-301 of his reasons, he says:
Counsel for General Motors submitted that the issue before me to decide is simply one of credibility, whether I believe the evidence of the five women who testified on behalf of General Motors or I believe the defendant and his denials of their complaints. In other words, if I believe the five women then General Motors was justified in terminating the plaintiff's employment on the grounds of sexual harassment.
I disagree! The issue is whether General Motors has established on the balance of the probabilities that it was justified in terminating the plaintiff's employment on the grounds of sexual harassment. Part of that determination involves scrutinizing the evidence of the five women and even accepting that all their evidence to be true, doing this against the back drop of the definition or of the component parts of sexual harassment. In other words, the evidence of the five women might reasonably be true and still not be sufficient to constitute sexual harassment as it is legally understood or defined. I intend to direct myself as I would a jury on the balance of probabilities using the illustration of the scales of justice with the evidence in favour of the proposition that General Motors was justified in terminating the plaintiff as it did being placed in one pan and the evidence contrary to the proposition being placed in the other pan. In the one pan is the evidence of the five women who testified and the other witnesses who may have in some aspect or respect supported the evidence of the five women. In the other pan is the evidence of the plaintiff and his general denial of the complaints against him, added to which are my findings on the evidence as it relates to the testimony of the five women; added to which is the atmosphere of the workplace or the conduct and language of the majority of security department employees as I have found it to be; added to which is the testimony of the employees such as Peter Douglas Allister and Quinn Salterelli who saw the plaintiff as a firm and decisive supervisor who was also fair and just and who would support a security officer in their interaction with employees of the plant; added to which are the excellent annual evaluation reports as to the plaintiff's performance. Considering all these factors I can only conclude that at the very least the scales of justice are evenly balanced if not weighted in favour of the plaintiff and accordingly I find that the defendant, General Motors, has not satisfied the onus upon it to establish it was justified in terminating the plaintiff's employment as it did without notice or payment in lieu thereof.
[24] In approaching the matter in this way, the trial judge has created a pot of stew in which it is impossible to identify the ingredients. He should properly have determined the issue of credibility as between the evidence of the five women and the respondent and, if the complainants' evidence was believed, should then have considered other factors such as the circumstances in the workplace and the respondent's employment record to determine whether termination was justified in the face of the proven complaints and any alternative resolutions that might be available. If the complaints were not established, and one would infer the opposite from the trial judge's reasoning, then the termination could not be justified. In passing, it is significant to note that the trial judge again took no account of the respondent's supervisory role in the department in respect to the alleged misconduct. It was clearly an error of omission to treat the respondent as if he was just one of many employees in the department who may have joined with others in improper conduct.
[25] The trial judge appears to have considered the matter as a contest between the supervisor and management, a simple matter of discipline. Accordingly, he was sympathetic to an employee of long standing with an exemplary work record. He suggested that he was unfairly singled out for a policy which had not been emphasized in the past. In doing so, the trial judge failed to recognize that management had two positive duties; first to members of the workforce who are entitled to protection from offensive conduct and second; to the corporation, to protect it against civil suits at the hands of individual complainants.
After Discovered Evidence
[26] At p. 288 of his reasons the trial judge states:
The incidents involving the pornographic video, the shorts and the safety glasses and the expressions of the plaintiff being attracted to Miss Murray did not form part of the material that Dallas McLean relied upon in making his decision to terminate the plaintiff's employment, as this evidence only came to light at trial.
And further at pp. 290-291:
I now turn to the evidence Kendra Snodden. At trial Kendra Snodden could not remember anything and yet her statement is before the Court because plaintiff's counsel did not object to the statement going into evidence. Upon reflection I have determined that what is at issue relative to Kendra Snodden not being able to remember anything is what information did Dallas McLean have before him at the time he decided to terminate the plaintiff's employment. Of course, this comment would apply to Trish Murray and the number of incidents she added at trial.
[27] This is a clear error of law. Justification for dismissal can be shown by proof of facts ascertained subsequent to the termination. See Lake Ontario Portland Cement v. Groner, [1969] S.C.R. 553 at p. 563. It is not necessary to go into the details of the evidence that was excluded from consideration. Suffice it to say that this evidence included significant additional incidents of what could be termed sexual harassment. Wearing Persistence
[28] The learned trial judge seems to have concluded that, in order to constitute sexual harassment for purposes of terminating employment, the conduct with respect to each complainant must be persistent and repeated. At p. 294, he states:
A stolen kiss in the medical examining room, if in fact it happened, is in the same category as the attempted kiss with Trish Murray in the computer room. Although totally inappropriate and worthy of rebuke, this behaviour was not followed by same or similar conduct. In fact, the plaintiff tended to stay away from Laurie Jackson following the incident and I find that this conduct did not constitute sexual harassment and that it did not have that element of wearing persistence generally associated with sexual harassment.
Further, at p.296:
I find that there is no evidence that the plaintiff withheld or delivered job related benefits such as preferred assignments, raises or promotions as a means to demand and receive sexual favours. I find that the plaintiff did not make persistent verbal propositions to any of the female security officers.
And at p.300:
In addition, I want to emphasize that there was no evidence of any behaviour on the part of the plaintiff wherein he persisted in unwanted social and intimate conduct when it was made clear to him that any such conduct was not wanted. I say this because a major component of the definition of sexual harassment is persistent, unwanted attempts at social or intimate contact.
[29] The Human Rights Code, R.S.O. 1990, c. H.19, s. 10(1) defines harassment as "engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome." In the Ontario Human Rights Commission Policy Statement on sexual harassment, published October 1993 by the Ontario Human Rights Commission, it is stated that there must be more than one event or a course of vexatious comment or conduct to meet the definition in the Code. It is further pointed out that a single instance of inappropriate conduct may be a violation of the Code if it creates a poisoned environment.
[30] In the instant case, it is important to note that we are not dealing with a complaint by an individual against another individual before a tribunal dealing with potential remedies under the Ontario Human Rights Code. We are dealing with an assessment of conduct that either does or does not justify termination from employment. If persistence is a factor in weaning out cases which justify hearings before a tribunal, it is only one aspect of conduct, and not a controlling one, in assessing justification for termination of employment. Here, the conduct, even if not repeated in identical form with individual complainants, was, according to the complaints, pervasive in the department and, moreover, was the conduct of the supervisor directed to female subordinates generally and repeatedly. This could be a far greater concern to an employer than if the conduct was confined to one employee and was persistent. In the latter case, the problem might be able to be isolated and controlled and termination avoided.
Conclusion
[31] It is my conclusion that the trial judge demonstrates in his reasons a complete lack of appreciation of the modern concept of equality of the sexes. He uses such expressions as "she gave as good as she got" and "it takes two to tango," both catch phrases from another era. He concluded that the plaintiff admitted demanding a kiss for a pencil and states:
... as to the kiss for a pencil incident, I find that on no occasion was a kiss ever given, that this style of management, although offensive and inappropriate, did not amount to sexual harassment.
Such conduct cannot be justified on the basis that a kiss was not actually given or, in the trial judge's words quoted earlier, that the respondent was only a "would-be womanizer." The trial judge, no doubt, formed the view, from listening to the witnesses, that this plant was a rough environment with abuse and sexual innuendo flowing freely in all directions, and the female employees strong enough to handle the exchanges. This is probably an apt description of many industrial environments of the past but cannot be tolerated in today's cultural acceptance of gender equality. It is not a question of the strength or mettle of female employees, or their willingness to do battle. No female should be called upon to defend her dignity or to resist or turn away from unwanted approaches or comments which are gender or sexually oriented. It is an abuse of power for a supervisor to condone or participate in such conduct.
[32] Despite the lack of credibility findings, if the trial judge had advised himself properly on the duties of a supervisor, the findings he did make fully justified dismissing the action.
[33] At p. 298, he states:
I have found that the every day interaction of the majority of the employees in the security department, both male and female, created an atmosphere where inappropriate language and jokes of a sexual nature were the order of the day.
And at p. 299, he states:
I find that the plaintiffs's behaviour and language in the workplace was no more and no less than that of the majority of the employees in the security department. I further find that profane language and slurs and jokes of a sexual nature which might in other circumstances be considered sexual harassment were common place occurrences in the security department, so much so that they were the norm rather than the exception.
[34] In light of the respondent's general denial of the events complained of, these findings carry an implicit acceptance of the substance of the complainant's evidence and that of the other employee witnesses, coupled with a finding that the respondent was entitled to act as he did because everyone else conducted themselves in a similar fashion. A supervisor who permits such an atmosphere as the trial judge describes to develop, and then participates in the exchanges as much as anyone else, is a supervisor who is not performing his duties.
[35] In an industrial plant, no one expects profanity or vulgarity to be eliminated, but unwelcome conduct or expressions based upon gender or race cannot be tolerated. Management was entitled to have a supervisor who would do his best to assure that the environment was clear of racist or sexist slurs or objectionable conduct. In respect of gender issues, the respondent failed management. Given the finding that he joined in these activities without later apology or acknowledgement, it is hard to imagine an alternative to termination which would not perpetuate the harassment which management was obligated to eliminate. In my view, the termination was fully justified.
[36] I would therefore allow the appeal and set aside the judgment below and dismiss the action with costs here and below.
Released: August 27, 1998