In a CLC Unjust Dismissal Adjudication ( Lawrie v Bell Media, 2020 CarswellNat 504) Adjudicator Novick had a situation where a 22 year service news anchor was terminated because even after receiving a warning letter , he persisted in sending numerous emails and Facebook messages to female co-workers regarding how gorgeous they were or how lucky their husbands or boyfriends were.
As the Adjudicator noted that ” The messages were not vulgar or explicitly sexual, but were often flirtatious, coy and containing sexual innuendo.”
The adjudicator noted not only that a number of woman complained, but that the the activity continued even after a final warning was issued.
Ms Novick upheld that the dismissal was not unjust.
This is how the Adjudicator summarized the evidence:
12 Mr. Laurie does not deny making the comments referred to, many of which were in written form and filed at the hearing. While the messages will be outlined in detail below, recurring themes appeared. Mr. Laurie repeatedly referred to his colleagues as being “gorgeous” or “pretty”, sometimes stating “you are ridiculously beautiful” or “you looked perfectly gorgeous yesterday”. Many comments state that the Complainants’ husband or boyfriend is “the luckiest guy around”. There are innumerable messages in which the women were referred to with pet names or nicknames such as “princess” or “bella”. Some exchanges involve Mr. Laurie offering meals out at restaurants, trips to exotic places or bottles of wine. The messages were not vulgar or explicitly sexual, but were often flirtatious, coy and containing sexual innuendo.
13 Most notable was the sheer quantity of messages sent, which varied by the year and the level of work interaction he had with each of the Complainants. They were often sent daily and occasionally several times each day. Many messages were sent late at night, well after the evening team’s shift ended. The messages would often begin with a compliment regarding the womens’ work performance and would then reference their appearance or attractiveness. A typical example of this type of message is – “you did a super job yesterday and you looked gorgeous!”.
This is how she dealt with issue of the issue of the appropriate penalty:
Was dismissal the appropriate penalty?
215 Mr. Fox submitted that while Mr. Laurie’s conduct may have justified some discipline, the Employer failed to take the “proportional approach” set out in the Mckinley case and those that followed. I find that Mr. Laurie’s conduct justified his dismissal from employment with Bell Media. His messages to the women in question were persistent, unwelcome and degrading, and caused them to feel awkward, intimidated and very uncomfortable. While any one or even a series of the messages viewed in isolation may not qualify as serious misconduct that would justify a dismissal for cause, the sheer volume and frequency of flirtatious messages sent to various women, in contravention of the serious written warning he had earlier received, persuades me that the “bond of trust” between Mr. Laurie and the Employer has been broken.
216 Mr. Laurie’s testimony at the hearing made it clear that he understood from the warning letter he had received in 2013, that he should not continue his behaviour of commenting on his colleagues’ appearance and attractiveness. The fact that the complainant on that occasion chose to remain anonymous has no bearing on the seriousness of the warning received. The letter states that failure to “conduct himself professionally at all times” will result in further discipline up to and including termination of employment. If there was any doubt that he was being given “one more chance”, Ms. Freeman made it clear when she met with him personally to discuss the warning that if he repeated the conduct, he would be fired.
217 Mr. Laurie conceded under cross-examination that many of the comments he made, that were filed into evidence at the hearing, contravened the warning that he received. His demeanour at the hearing while under cross-examination was not one of a wrongdoer acknowledging his mistakes and seeking another chance. Instead, he was defensive and sarcastic, and refused to admit facts that the written documents made clear, such as his many apologies to the women for commenting on their appearance and attractiveness. He came across as someone who felt that he had been wronged, and himself deserved an apology. I accept the Employer’s contention that he has not accepted responsibility for his actions.
218 Mr. Fox argued strenuously that “the punishment should fit the crime” and that while the comments made by Mr. Laurie were inappropriate and perhaps unwanted, they do not justify the dismissal of a senior member of the newsroom with twenty-two years of seniority. He cited the following comments by Justice Iacobucci in McKinley, supra –
An effective balance must be struck between the severity of an employees’ misconduct and the sanction imposed. The importance of this balance is better understood by considering the sense of identity and self-worth individuals frequently derive from their employment.
(at para.53)
219 I have no doubt that Mr. Laurie derived a sense of identity and self-worth from his job. He was a valued employee and an important contributor to the organisation. I also understand and agree with the courts’ direction that a “proportional approach” should be taken in assessing whether the sanction imposed by an employer is proportional to the misconduct in question. As instructed by the Ontario Court of Appeal in the Dowling v. Ontario (Workplace Safety & Insurance Board), supra, decision, I have examined the nature and circumstances of the misconduct, and have determined that Mr. Laurie’s actions were “incompatible with the fundamental terms of the employment relationship” and that the “bond of trust has been broken”.
220 I make my findings above based solely on the evidence before me. I do note, however, that the four women who testified also advised that other female colleagues had shared similar experiences with them, and that some had shared inappropriate messages that they had received from Mr. Laurie. The evidence suggested that the feeling around the newsroom was that the Employer was aware of this behaviour, and that “nothing was being done about it”. The legislation and case law cited above make it clear that an employer has an obligation to provide a safe and harassment free workplace for all of its employees. This is a duty that every employer must take seriously. This obligation must clearly be balanced against the notion of progressive discipline and the requirement to treat employees whose actions may threaten this safety fairly. I find that when the evidence clearly supports that an employee has ignored a serious warning and shows no sign that he has taken responsibility for his actions, as is the case here, his dismissal from employment is justified.
221 For the reasons cited above, I conclude that the Employer’s decision to terminate Mr. Laurie’s employment was not unjust. I therefore dismiss this complaint.