The Supreme Court of Canada recently weighed in on the testy topic of romance in the workplace
Romance in the workplace is a hot topic that is guaranteed to trigger interest.
Recent studies indicate that roughly 30% of workers have had, or hope to have, a romantic liaison within their workplace. Within employment law context, the discussion of that topic invariably turns to the effects of romantic liaisons on the workplace itself and the ongoing employments of the so-enamoured. Interestingly, the employment law results of romance in the workplace tend to change with the times.
For instance, in a case from 1918 involving a fireman who was having an adulterous relationship with the wife of his neighbour and boasting about it in his workplace, the Ontario Court of Appeal ruled that when the employer dismissed the fireman for cause based on his adulterous relationship, that it was justified in doing so. The result of the 1918 case was that the fact of adultery itself gave the employer grounds for dismissal for cause. Oh, how times have changed!
With the momentous changes we have seen in social mores since the 1960s and the liberalization (some may say elimination) of those mores, one can expect a different legal result today from facts similar to those from the 1918 case.
For instance, in another Ontario case from 1979 (involving an employee conducting an adulterous relationship with the wife of a fellow employee), the court rejected the employer’s claim of just cause for dismissal.
That decision was made on the basis that to succeed with a just cause defence in these circumstances, the employer must show that the conduct was prejudicial or likely to be prejudicial to the interest or reputation of the employer.
The court concluded that the conduct of the philandering employee did not, in itself, justify dismissal for cause.
In 1995, the Ontario Court of Appeal (the very same court as made the 1918 decision) upheld the reasoning in the 1979 Ontario decision in a separate case.
According to the facts of the case, an employee had affairs with two female employees while he was still married to another fellow employee, who also happened to be the daughter of his boss.
The employer was said to have only a few employees and functioned similarly to a family.
The employer ordered the man to cease having sexual relations with his female co-workers, an order that he disobeyed. The employer eventually dismissed the employee for cause. However, the court rejected the employer’s argument that they had just cause for the dismissal based on this behaviour.
Citing the 1979 decision, the court confirmed that unless the behaviour had a negative effect on the employee’s job performance or caused prejudice to the employer in the conduct of its business, then there was no basis for dismissal.
But, in 1999, the Ontario Court of Appeal (the same court again), made an opposite decision.
In this instance, it was heard that an employee had numerous sexual adventures with his female co-workers at work-sponsored social events. At trial, the court followed 1979 Ontario and 1995 appeal court case, and forgave the employee his sexual misadventures. Part of the trial court’s basis was that the events occurred after hours.
However, the Ontario Court of Appeal reversed the trial decision, and found the employer had just cause to dismiss the employee. The court of appeal recognized that the individual’s conduct created a sexualized work environment that displaced the affected employees devotion to work, and thereby caused prejudice to the employer in the conduct of its business.
The Supreme Court of Canada endorsed the decision of the Ontario Court of Appeal, thereby making it the law of the land on this point.
Who says the law doesn’t adjust to the times?
In the modern workplace, the wise employer takes steps to clearly delineate conduct it deems to be out of bounds. However, while the employer has the right at common law to make rules and set policies that delineate and determine the way employees are to conduct themselves in the workplace, in order for these rules and policies to be held enforceable, the general rule is that the employee must know about and consent to such rules or policies.
Based on the demonstrated flux of the common law with the times and mores, if the employer wishes to enforce rules about romantic liaisons and other workplace behaviour, it should create clear and written rules that are known and accepted by each employee.