Court Backs Hard Line on Sexual Harassment01-Dec-14
By Matt McClure, The Calgary Herald
In the course of a single dinner with business associates a decade ago, a veteran executive with an Alberta oilsands company slapped one woman on the buttocks, grabbed the knee of another beneath the table, and pulled a third onto his lap.
Later at a lounge, the assistant comptroller of Syncrude Canada Ltd. confided to some of the same female executives with the firm’s pension fund administrator that he found them physically, if not intellectually, stimulating and was heard asking them to guess the size of the bartender’s breasts.
On the cab ride back to his hotel after the drink-filled evening on his Toronto trip, John A. Clarke proceeded to put his hand on the thigh and under the skirt of one of the women with Sun Life Financial Inc. who tried to push him away and told him to stop.
There had been no previous complaints of sexual harassment against the 55-year-old and his work record of over 20 years with Syncrude was “reasonably satisfactory,” according to a decision by the province’s top court on Clarke’s wrongful dismissal action.
But a three-member panel of the Alberta Court of Appeal still ruled the company was within its rights in firing him for cause after Sun Life later informed them of the fateful night’s events in November, 2004 and asked that Clarke be removed as its main contact at the company.
“We agree with the (trial judge’s) assessment,” said Justice J.D. Bruce McDonald, “given the egregious nature of the behaviour, the leadership position held by Clarke, Syncrude’s clear and unequivocal policies prohibiting harassment of any sort, which were well known to Clarke, and the adverse impact it had on a key business relationship, as well as the adverse impact it had on key business advisers working for its pension fund administrator.”
While Clarke was contractually precluded from claiming a bonus because he was fired for cause in early 2005, the three-member panel concurred with the Court of Queen’s Bench ruling that Syncrude had undervalued his stock options when it made a “magnanimous” payment of over $262,000 for vested, but unexercised options at the time of his termination.
While employment law experts say the ruling is not precedent setting, they do stress that Clarke’s case shows how the views of both the court and society on sexual harassment have rapidly evolved in recent decades.
“Even before the recent business with (former CBC host) Jian Ghomeshi and the issues involving MPs on Parliament Hill, courts and other decision-makers were becoming increasingly critical of harassing, particularly sexually harassing, behaviour,” said Will Cascadden, a Calgary-based lawyer with McCarthy Tetrault.
In a 2013 decision after the trial, Justice Alan D. McLeod said he found it troubling that Clarke had almost no recall of the events at the conclusion of a day that included drinks on his morning flight from Edmonton and more alcohol at the reception and dinner later in a Toronto restaurant.
“Upon arrival at the reception, Mr. Clarke does recall that he enjoyed the hospitality of his host and had more than one martini,” McLeod said.
“I am sure he had several.”
While McLeod said it was mitigating that this was a “single out-of-character evening” and that Clarke was not a manager of the women he touched or talked to inappropriately, the judge found the incidents were still at the serious end of the spectrum due to “decreasing tolerance for sexual harassment in the workplace due to the standardization and proliferation of employer zero tolerance … policies over time.”
Tom Ross, who provides legal advice to employers on behalf of McLennan Ross, said the case is proof that no executive in the city should do anything they are not prepared to answer for to their company directors after it “appears on the front page of the Calgary Herald” or otherwise comes to light.
“One incident can have all the right ingredients to lead to termination for just cause even for a good long term employee,” Ross said.
“Employers have an obligation to ensure their workplace is a safe one, and ones that aren’t may find, among other things, that it is difficult to attract and retain good people during times of labour shortage.”
Janet Salopek, a human resources consultant to many small and mid-size energy companies in Alberta, says most firms have put in place harassment policies within the last decade to deal with both the legal liabilities and reputational loss they could face should ab incident occur.
“Employees today know their rights and they know what they can do if someone misbehaves,” Salopek said.
“It only takes one claim to make it very embarrassing for an organization and also quite costly.”
A spokesperson for the law firm that represented Clarke in his lawsuit said neither he nor his lawyer, Laurie Robson, were available to comment on the decision.
Will Gibson, a spokesman for Syncrude, said the Fort McMurray-based firm was pleased with the recent ruling.
“(The court found) found the conduct in question was in breach of our policy and that the action taken by Syncrude was justified,” Gibson said.
“We are committed to providing a healthy environment for our employees and contractors that is free of discrimination, harassment and violence.”
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