1969-99-ES Rick Brown, Applicant v. Sears Canada Inc. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 20034052
BEFORE: Pamela A. Chapman, Vice-Chair.
APPEARANCES: Rick Brown, applicant; Graham Clarke for the respondent employer; Grainne McGrath for the Ministry of Labour.
DECISION OF THE BOARD; September 28, 2000
This is an application for review of the decision of an Employment Standards Officer, brought by the applicant Rick Brown (“Brown”), pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E.14, as amended (“the Act”).
The applicant filed a claim with the Ministry of Labour on May 5, 1999, seeking the payment of termination and severance pay by Sears Canada Inc. (“the employer” or “Sears”), his former employer. The officer appointed to investigate the claim concluded, having regard to the information provided by the applicant and by the employer, that Brown had engaged in wilful misconduct within the meaning of section 57(10) of the ESA. She therefore refused to issue an Order to Pay for termination or severance pay.
At the hearing held in this matter on March 3, 2000 the applicant and employer had an opportunity to give oral testimony and to introduce into evidence various documents relating to Brown’s employment with Sears, as well as to make submissions concerning the application for review. Having regard to the evidence and to those submissions, the following is my decision.
The Facts
Rick Brown began his employment with Sears Canada Inc. on March 27, 1991. He worked as an Investigator in the Resources Protection department His duties as an investigator include monitoring the store and its customers and staff to ensure that items are not stolen, and investigating all kinds of incidents, possibly including those where sexual harassment has been alleged. He is 39 years old.
Brown was terminated on March 25, 1999, following an incident which is alleged to have occurred on March 16, 1999 at his place of employment. Brown was working on that date, performing his usual duties as an investigator, which include patrolling the sales floor. It is not disputed that during his shift he spent some time chatting with a female sales associate, who will be referred to in this decision as “JW”. Brown and JW had known each other since JW began work at the store in the fall of 1996 , and often chatted or joked when they encountered each other at the store. JW is a young woman who was 20 years old when these events occurred.
According to JW, these conversations and encounters had often included exchanges which she characterized as sexual harassment by Brown, including the use of inappropriate sexual language, sexual comments about her appearance, sexual propositions, and inappropriate touching of her person. Examples include speculating about her sexual behaviour, talking about his own, and putting his hand up the back of her blouse while riding behind her on an escalator. She testified that she felt awkward, uncomfortable and intimidated by some of these interactions, particularly given Brown’s position as an investigator in the store and his age and seniority. JW did not report any of these earlier encounters to management. (Most of these incidents were not raised by JW at the time of Brown’s termination and were not relied upon by the employer in asserting cause.)
Brown acknowledges that prior to the day in question he had joked with JW and perhaps teased her, but felt that his language and the subject matter were always appropriate and not intended to, nor likely to, intimidate her. He also claimed that their interactions were always mutual, and that JW sometimes made comments that were sexually provocative or personally revealing. In particular, he made reference to occasions on which she had shown him her tatoos, which required her to move or raise articles of clothing.
On March 16, 1999, JW claims, Brown approached her and began a conversation about several sexually charged topics, including body piercing. There were other associates, and customers, on the sales floor at that time, but none within sight or earshot. She says that at one point he picked up a hair clip off the counter at her work station and tried to clip it on to her nipple over her blouse. He then put his arm around her, pulling her close, and massaged her breast.
JW said that she didn’t really say or do anything when this occurred, but was feeling very awkward, upset and uncomfortable. Brown approached her about 10 or 15 minutes later, apologized and said that he really didn’t need a lawsuit. He did not say that the contact had been an accident. JW was absolutely clear that the contact could not have been accidental.
Her first formal report was to a personnel officer at another Sears location, to whom she was taken by her sister who also worked for Sears. That report, dated March 18, 1999, is consistent in most important respects with her testimony about the alleged incident, other than the notation that Brown put his hand up inside her blouse. JW was certain that she had never claimed that the contact was under her clothing, and that the personnel officer’s notes must have been a mistake. She recalled that she was upset when she met with her, and still crying. She wasn’t asked to review the report or sign it, and didn’t see it again until she was interviewed by counsel for the employer in preparation for the hearing.
After the initial meeting with a personnel officer, JW was called by another human resources representative, and then went in to meet with her. After that, her next contact was with the Employment Standards Officer who investigated Brown’s claim.
Before filing the first report with management JW told her sister and boyfriend about the incident, and they encouraged her to make a complaint. She also called in sick to work, as she was upset, didn’t want to see Brown and, she claimed, was terrified that she would lose her job. She took a week off, during which time she traveled to her parents’ home and told them about the incident. Her father is a store manager for Sears in another town.
After JW told her boyfriend, a sales associate at the same store, that something had happened with Brown, he went into the store and confronted him, asking him “what had happened with J?” Brown denied that anything had happened and said that he didn’t know what he was talking about.
The altercation with the boyfriend led Brown to report to his supervisor, whom he called on March 22, 1999. Resources Protection Supervisor Patrick Howie testified about this conversation, and one the following morning after Brown was contacted by the store manager to come in for a meeting. Howie asserted that Brown phoned him to tell him about the interaction with the boyfriend, and that during that conversation he described having “grabbed’ JW’s breast on a previous evening. He was certain that “grabbed” was the term that Brown used to describe the behaviour, and recorded this in his notes made the next day, although he acknowledged that Brown also used the term “touched” at later points in the conversation.
Howie also recalled Brown making some comments which suggested he was attempting to blame JW for his behaviour, saying that she had “put him in the situation” and also “you know what J is like”.
Howie testified that from time to time he had raised concerns with Brown about making inappropriate comments to other staff. He described these remarks as those of an “adult” nature, and said that he had advised Brown when he felt his comments were inappropriate and warned that he had better “watch himself”. He also claimed that he had previously seen Brown touch the breast of a female colleague, who didn’t seem concerned with the gesture. None of these incidents led to the filing of a formal complaint or to the imposition of discipline, and they were not recorded in writing.
Brown also discussed the incident with JW with his colleague Peter Leland, an investigator less senior than he, when they worked together on or about March 17, 1999. Leland testified that Brown told him that after a discussion with JW about body piercing which went on for some time he had hugged her and accidentally grabbed her breast. The conversation between Brown and Leland was interrupted by the visit from JW’s boyfriend, who spoke to Brown outside the security office. Leland recalls that after this exchange Brown suggested to him that he believed he was in trouble. He again reviewed what had happened, describing the contact this time as “accidently brushing” the breast. According to Leland, Brown said that he thought that JW was a very provocative young female and that she almost welcomed the grabbing.
In addition to the oral warnings delivered by his supervisor Patrick Howie, Brown had been warned about inappropriate conduct with other staff in previous performance reviews. The review dated March 14, 1996 contains the following comment: “in the past year Rick has shown a lack of respect in regards to his fellow associates”. And on October 15, 1992 Brown was advised that the following area “requires development”: “Immediately stop using vulgar and offensive language when dealing with all staff (male or female) Managers, clerks, and shoplifters”. Otherwise, Brown received consistently good reviews on his performance, and was described by Howie as a very talented investigator.
Following the complaint by JW being reported to senior Sears management, Brown was called to attend a meeting with the store manager and human resources staff. He was asked about the incident with JW, which he characterized as an accidental “brushing” of her breast. At the end of the meeting he was suspended pending investigation, and he was then terminated for cause, by letter dated March 25, 1999.
Sears has a zero tolerance policy on workplace harassment, which was adopted recently and reviewed with all staff. The brochure describing the policy defines sexual harassment as including “unnecessary physical conduct such as touching, pinching or patting”, and states that the consequences of engaging in such behaviour may include “immediate termination for serious offences”.
As a Resource Protection investigator Brown also had to sign a “Conduct Contract” which emphasized his obligation to carry out his duties with honesty and integrity and within the law.
THE DECISION
- Section 57(10)(c) of the Employment Standards Act provides as follows:
Subsections (1) and (2) [notice of termination pay] do not apply to, ...
(c) an employee who has been guilty of wilful misconduct or disobedience or wilful neglect or duty that has not been condoned by the employer;
As noted above, the employer characterized its decision to terminate Brown’s employment as dismissal for cause due to his having sexually harassed a Sears associate.
The Employment Standards Officer relied upon section 57(10)(c) in dismissing the applicant’s claim for termination pay, stating similarly that he had engaged in sexual harassment and as a result was guilty of wilful misconduct.
This case is really a straight factual dispute, requiring me to assess the credibility of the two main witnesses - the complainant JW and the alleged perpetrator Brown - in the context of the testimony of other witnesses who described what was reported to them in the days following the incident, and various records of those discussions. JW claims that Brown engaged in deliberate conduct which would undeniably constitute sexual harassment were it intentional, while Brown says that he “accidently” touched her and then apologized quickly, which in his submission falls far short of sexual harassment. The central question before me is: did Brown sexually harass JW on the day in question?
I found JW to be a very credible witness. Her demeanor throughout her testimony was consistent with her claim that she had been assaulted and quite traumatized by the incident, and so too were her actions following the incident, including calling in sick to avoid seeing Brown, and speaking to family and close friends about what had happened. She reported the incident shortly after it is alleged to have occurred, and her description of it has not changed since the first report. All of these actions are consistent with the claim that something serious happened on March 16, 1999.
It is also significant that JW terminated her employment at Sears in July 1999. Having left the company, and having no financial stake in the outcome of these proceedings, there is absolutely no reason for her to maintain her complaint about Brown to the point of testifying about something that she obviously found very traumatic and unpleasant. And Brown was unable to suggest any reason that she may have had to lie - in fact he claimed that she had always been quite friendly with him.
There is no question that the investigation undertaken by the employer was a bit sloppy as it didn’t get a written statement from JW or ask her to review the notes taken by the people who interviewed her, which resulted in a critical piece of information being misrepresented in the version management acted upon. This problem was exacerbated as the store manager and human resources staff who conducted the interview with Brown and decided to terminate him didn’t speak to her. This means that the employer proceeded on the mistaken assumption that Brown had touched her breast under her blouse, as that is what was on the report from personnel. Still, deliberate touching over her clothing is still a very serious allegation and I am satisfied that a clarification would not have led the employer to reconsider its decision. Certainly either form of touching would constitute sexual harassment and therefore wilful misconduct within the meaning of the ESA, as discussed below.
I did not find Brown’s explanation of the incident with JW to be as credible as her simple description of what had occurred, and I am troubled by the inconsistencies in his various descriptions of the incident, and by the shift in his characterization of what had occurred as the seriousness of the situation became clear. I have also concluded that various of Brown’s actions and comments suggest a clear consciousness of guilt.
I was impressed by the testimony of Peter Leland about his conversations with Brown in the days following the incident. Leland was very forthright in his manner and seemed quite clear about what had been said. While Brown suggested through his cross-examination that Leland wanted to please the employer by testifying, I am satisfied that he had little reason to lie. Leland’s recollection portrays Brown struggling to come to terms with what had happened and the likely repercussions, and his description of the situation altering slightly as he realized that he was in some trouble, and that blaming JW was unlikely to be a satisfactory explanation. While his notes were made some time after the conversations, as management wasn’t aware at the time of their investigation that Brown had spoken to Leland, they are largely consistent with his oral testimony and I find them to be a generally accurate record of the events they record.
There was also one interesting reference in Leland’s testimony which seems to corroborate an unusual detail of JW’s evidence. Leland recalled that in the second conversation he had with Brown about the incident with JW he mentioned putting or rubbing barrettes on her breast after their conversation about nipple piercing. His recollection was that Brown had referred to JW placing the barrettes, but wasn’t clear about the details of the reference, and said that he really hadn’t understood what Brown was talking about. Leland was not present during JW’s testimony, and her description of the placing of a hair clip on her breast immediately before the hug was first raised at the hearing. Brown completely denies the whole hair clip incident, but if nothing of the sort occurred it is hard to understand how Leland could have referred to it entirely unprompted.
The testimony and notes made by Brown’s supervisor Patrick Howie concerning the incident are also significant in assessing Brown’s credibility. His report of his first discussion with Brown, which occurred when Brown called him to talk about the altercation with the boyfriend, seems consistent with JW’s recollection of the nature of the contact with Brown. These notes, made on March 23, the day after the first conversation with Brown, refer in the first paragraph to Brown having “grabbed J’s breast”. In recounting the details of the incident as reported by Brown, he notes that a discussion was held about JW having her nipples pierced, and that Brown claimed that in the process of giving her a hug he “grabbed” her breast. Brown also acknowledged that he returned later to speak to JW, although he claimed that this was to apologize. These notes are particularly significant as at the time they were made Howie was unaware that JW had filed a complaint or of the nature of the complaint, so his description of the incident came only from what he was told by Brown.
During the interview with the store manager and human resources manager which led to his suspension pending investigation, Brown said a number of things which showed a consciousness of guilt. First he acknowledged in the first few minutes that he knew that he was there because of the “incident” with JW, which he described as having accidently touched her breast while kidding around and giving her a hug. He also admitted that he went back to speak to her afterwards and apologized.
Considering Brown’s testimony about what happened in the context of all of these interactions with others during the days following the incident, it is clear that while he first described the exchange as “grabbing” JW’s breast, he began to minimize its significance once he realized that the situation might be serious, beginning to describe it as “touching” or “grazing”. Brown also attempted to blame her as having provoked the episode, which was apparent as well at the hearing, where he characterized his earlier interactions with JW as demonstrating provocative conduct on her part.
Having carefully considered all of the testimony and the documents relating to the incident, I have concluded that the incident did occur essentially as described by JW, and that Brown therefore clearly engaged in conduct which constitutes serious sexual harassment.
In assessing whether Brown’s behaviour with JW would constitute wilful misconduct, I must consider several elements which would tend to exacerbate the seriousness of his conduct and support the employer’s decision to terminate for cause.
First, I am satisfied that Brown did have a history of engaging in less serious but still inappropriate conduct which might well be characterized as sexual harassment, including making sexually charged jokes and using sexually inappropriate language. This conduct, his failure to respond to warnings about such behaviour, and his attempt to minimize the significance of such conduct, all suggest that Brown has a problem maintaining an appropriate line between friendly and harassing behaviour.
It is also significant that Brown did not respond to previous warnings about potentially sexually harassing conduct, delivered orally by his supervisor and also reflected in earlier performance reviews. It is perhaps not surprising given this pattern that his conduct eventually escalated into unwanted sexual touching.
The conduct towards JW is also exacerbated by the fact of Brown’s seniority and greater age, combined with his position as a member of the security staff. In these circumstances it is not surprising that a young and junior female employee would feel particularly intimidated by harassment of the sort that occurred on March 16, 1999.
As noted above, Sears has a zero tolerance policy on sexual harassment, which Brown had seen, so he was clearly aware that his employer considered behaviour of the sort I have found he engaged in to constitute misconduct and merit a disciplinary response up to and including termination.
And finally, I have concluded that Brown was not forthright during the investigation by the employer of these events, and he maintained his characterization of the incident as “accidental” through the hearing in this matter. This suggests a lack of remorse on his part and a continuing failure to accept the seriousness of this kind of conduct in a workplace.
Considering all of these factors, I am satisfied that Brown’s conduct was very serious and certainly constituted the level of misconduct which would be considered “wilful” within the meaning of the ESA. There is ample authority in earlier decisions by adjudicators under the ESA for this conclusion. In Re Montreal Trust Co. of Canada (May 11, 1990) Referee Brown stated at page 17 that he had “no doubt that a serious act of sexual harassment would warrant immediate dismissal by the employer and could, in itself, be characterized as wilful misconduct”. Similarly, the referee in Re Mmmuffins Canada Corp. (October 31, 1996) suggested that any but the most trivial form of sexual harassment would justify summary dismissal, including either “inappropriate and shameful comments about a person’s appearance” or “unwanted sexual touching”. A similar approach has been taken by the courts: in Gonsalves v. Catholic Church Extension Society of Canada, [1998] O.J. No. 3404, the Court of Appeal upheld the termination for cause of an employee who made unwanted sexual approaches to another, hugging her on more than one occasion, and on a single occasion caressing her breast. The trial judge had awarded pay in lieu of notice because the employer had not warned the employee that his behaviour was unacceptable. The Court of Appeal rejected this reasoning, stating that “serious misconduct, which is manifestly inexcusable, may make a warning inappropriate to an employer who is satisfied that the misconduct has occurred” (at paragraph 17).
For all of these reasons, the officer’s decision not to issue an order to pay is maintained and the application for review denied.
DISPOSITION
- The application for review is dismissed.
“Pamela A. Chapman”
for the Board