September 26, 2007by Israel Foulon LLP
Q: When can an employer terminate an employee for sexual harassment in the context of an office romance that turned sour?
Answer: Given the increased awareness of sexual harassment issues in the workplace along with the increased importance of avoiding conflict of interest situations, the issue of dealing with the potential problems surrounding office romances has become significant. As a result, many employers are considering the institution of formal office romance policies. While it is difficult to establish an enforceable policy that absolutely bans all office romances, it is possible to institute policies that provide a level of protection to employers to attempt to ensure that office romances do not result in sexual harassment situations or the creation of conflict of interest situations.
An instance of an office romance gone sour was recently adjudicated before the Ontario Courts in the case of Menagh v. The City of Hamilton (2005), 2005 CarswellOnt 4961 (S.C.J.); (2007), 2007 CarswellOnt 2030 (C.A.).
Robert Menagh was a lawyer who acted as the Director of Labour Relations for the City of Hamilton. As Director of Labour Relations he was the senior staff member primarily responsible for the negotiation of labour agreements with the City’s unionized staff and was responsible for ensuring that the City’s harassment policies were included in the collective agreements he negotiated.
Menagh commenced a romantic relationship with Maureen Wilson who worked as the Mayor’s Chief of Staff and as such reported directly to the Mayor. Menagh did not report directly to the Mayor but would serve as an advisor to the City and the Mayor on important labour relations issues. Both Menagh and Wilson had lengthy positive employment relationships with the City and neither had been the subject of any significant disciplinary action.
Menagh and Wilson began a romantic relationship in 1997. The relationship was somewhat difficult due to a number of incompatibility issues. By February 2001, Wilson had determined that there was no future in the relationship and she advised Menagh of her feelings. Over the course of the Easter weekend of 2001, Wilson formally communicated to Menagh that their relationship was at an end but she hoped they could remain friends.
The trial judge found that Menagh refused to accept that the relationship was over despite Wilson’s repeated confirmation of this fact. The trial judge found that over the course of the next several months Menagh engaged in following unwelcome behaviours which the judge found constituted sexual harassment:
- Menagh repeatedly discussed the breakdown of the relationship with Wilson’s co-workers (despite knowing that Menagh was a very private person);
- He continued to send flowers to her office;
- He attended at her home uninvited and would knock on both her front and back doors;
- He stood on the path outside her office window looking in at her;
- He began deliberating parking his car next to hers in the parking lot;
- He continued to send her email messages suggesting a rekindling of their romantic relationship (including proposals of marriage); and
- He commenced actions of reprisal and uttered threats when he learned that Wilson had commenced a new relationship.
The trial judge noted that the above noted conduct took place in the workplace and that Wilson repeatedly and clearly made Menagh aware that his conduct was unwelcome. As such, his conduct amounted to sexual harassment in the workplace.
Once Menagh became aware of Wilson’s new relationship, Menagh took active steps to attempt to have Wilson’s employment terminated. Specifically, Menagh arranged to meet with Wilson’s boss, the Mayor, during which meeting he suggested to the Mayor that he should terminate Wilson’s employment due to a potential negative newspaper article that would soon be surfacing about Wilson. The trial judge held that Menagh’s unsuccessful attempt to have Wilson fired constituted a reprisal for spurning his romantic overtures and that Menagh had placed himself in a conflict of interest position as he ought not to have been providing the Mayor with any advice in respect of Wilson’s continued employment relationship.
In late December 2001, Menagh was charged with uttering death threats, two counts of criminal harassment and dangerous driving after an incident occurred in which he was found to have been driving his vehicle at high speeds in Wilson’s neighbourhood causing Wilson’s new partner to jump out of the street to get out of the car’s path. The City learned of the charges, conducted their own investigation and terminated Menagh’s employment for just cause.
Menagh sued the City alleging that he had been wrongfully dismissed. Not surprisingly, the trial judge and the Court of Appeal both concluded that the termination for just cause was fully justified given Menagh’s continued acts of harassment and his acts of conflict of interest.
For employer’s, this case provides a somewhat extreme situation of what can happen when a relationship between co-workers breaks down. What steps can an employer take to combat these types of issues?
As noted above, it is difficult to establish an enforceable policy that absolutely bans all office romances. However, an office romance policy can clearly provide that romances between employees who are in a reporting relationship to one another are prohibited. Relationships between managers or executives and more junior employees invariably involve an underlying power imbalance between the parties. In most cases, this power imbalance will be difficult to overcome, creating a conflict of interest situation. The presence of a power imbalance within a relationship also increases the risk that a sexual harassment complaint can be successfully launched against the manager or executive and the company, in the event the relationship eventually comes to an end. If such a relationship develops then the policy should provide that both parties are required to inform the employer of the relationship so that appropriate steps can be taken to lessen possibilities of conflict of interest, harassment or favoritism issues occurring. Often times this may require a change of position for one of the employees involved. In some circumstances, a discontinuation of employment for one of the parties may be the only workable resolution.
An office romance policy should also clearly set out the differences between personal/private matters and proper employment matters. Office gossip is disruptive, damaging to reputations, and may adversely affect the corporate culture. The policy should provide that discussions of problems in the relationship must not be aired or shared with co-workers. A professional atmosphere must be maintained at all times. Employees should be prohibited from engaging in gossip, rumours, or other similar negative behaviours.
Other policies relating to harassment or conflict of interest situations should also be prepared or reviewed to ensure that they appropriately deal with the possibility of a romance between employees. The policies should be clear that conduct that occurs in the “workplace” (broadly defined) is governed by the policies. The policies should also note that interactions between employees that take place outside of formal work events can also have a baring on the workplace and therefore employees should be guided by the company’s policies and procedures in respect of all interaction between employees (regardless of the location or timing of such interactions).
It is clear that these types of relationships have the potential to adversely impact on the operations of the company. Generally, workplace relationships are not grounds for termination of employment. To constitute cause for dismissal, the employer must prove that the consensual relationship has had an adverse impact on the company’s operations to the extent that the employee’s actions can be considered a breach of the employment contract and that continued employment has become unworkable. From a strictly legal perspective, it is advisable to strongly discourage office romances. However, human nature being what it is, instituting the types of policies as set out above is probably the best that an employer can do.
Chris Foulon is a Partner of Israel Foulon LLP, a leading employment and labour law firm in Toronto. Chris can be reached at 416.640.1550 or firstname.lastname@example.org.