Unproven Allegations of Sexual Assault and Sexual Harassment Extend Notice Period:

In Smith v Vauxhall Co-Op Petroleum Limited ( 2017 ABQB 525) Justice Dario had a situation where she had to determine the proper notice period for a 57 year old Divisional Manager of 22 years service who made $70,000 per year.

The employer had alleged just cause , including an allegation of sexual assault and sexual harassment. .The Judge found that these particular allegations  were unproven.

In assessing the proper notice period ( which she found to be 20 months ) the Judge commented as follows:

[ 152] Based on the Bardal Factors, I find Mr. Smith would be entitled to a notice period of 20 months. He is entitled to such an award given his length of service, level of seniority, and the difficulty he may have had securing comparable employment.

[153]      In calculating Mr. Smith’s notice period, I have also taken into consideration Ms. AM’s allegations of sexual harassment and sexual assault: see Elgert at para 68. Consequently, I have assessed the notice period as higher than it would normally be for someone in similar circumstances. This is due to the impact the allegations may have had on Mr. Smith’s ability to find new employment.

Here is the kicker. This assessment of 20 months was a provisional assessment solely for the purpose of a potential appeal.

In fact the Judge upheld the discharge for just cause on the basis that the Plaintiff had engaged in a pattern of personal harassment of, but not sexually assaulted or sexually harassed,  his female subordinate. The other element of just cause was that he lied to his employer during the investigation about the nature of his relationship with the female subordinate.

That is what you call a Pyrrhic Victory.

Quite frankly, 20 months notice would see to be the correct notice period under normal circumstances so it is odd that the judge emphasized that she would have  awarded  an increased notice period because of the unproven allegations of sexual assault and sexual harassment.