The issue was recently reviewed in Brazeau v. International Brotherhood of Electrical Workers (December 16, 2004, BCCA) where Madam Justice Saunders dissented.
The majority of the Court upheld the decision of the trial judge in which she found that, while Brazeau had "committed acts which fell in the middle of the spectrum of sexual harassment but that the Brotherhood had failed to establish that those acts justified summary dismissal. " The trial judge held that Brazeau was entitled to 24 months reasonable notice of termination (or pay in lieu of such notice) which translates into a payment of $197,471.23.
The majority of the Court of Appeal decided the case largely on the basis that:
.... it is important to understand that we cannot be asked to retry this case. The appellant must show that the trial judge misapprehended the evidence or misapplied the law in such a way that her conclusions might well have been expected to have been different but for her errors.It reviewed the evidence before the trial judge, the fact that the trial was lengthy (12 days) and the conclusions reached by the trial judge based on that evidence.
As mentioned, it dismissed the Union's appeal.
Madam Justice Saunders took on a more analytical approach to her task and, in doing so, provides an thorough review of the law of sexual harassment in the workplace. She put the task of the Court of Appeal as follows:
The question for this Court is whether the trial judge demonstrated error in her reasons. In my view she did by failing to address one of the most important aspects of the context of the dismissal, what I would term the starting point for any analysis of cause, the nature of the employment itself.According to Madam Justice Saunders:* * *The circumstances relevant to cause start, in my view with the nature of the enterprise in which the employee works and the nature and status of the employment within that enterprise. [Emphasis added]
Thus missing is any consideration of the significance of Mr. Brazeau's position as a senior trade union official and his duty to advance the representation and protection of employees, including both from the pernicious effects of sexual harassment and from unjust complaints of sexual harassment. The reasons fail to recognize the significance of the reputation of the IBEW on this equal opportunity issue and its interrelationship with the authority to represent others given to it by labour legislation.Accordingly, the fact that the trial judge appears not to have considered the unique nature of the employer's business (i.e. a trade union) in her assessment of the conduct complained of and proven, was an error which would have resulted in Madam Justice Saunders allowing the appeal.
However, in assessing the degree to which the employment relationship was impaired by Mr. Brazeau's conduct, the reasons for judgment do not advert to the "trade union" nature of the employer or the position of Mr. Brazeau, both of which have an aspect of modeling and require moral authority to represent others. This modeling aspect is not unknown in employment situations and there are many fields of employment in which behaviours that may be tolerated in another work environment are unacceptable and cause for dismissal.
I have spent more time on the dissenting opinion because, in the end, I believe it reflects an approach that is more in line with the realities of the workplace. What is clear through the practice of labour and employment law is that there are no two employers or industries that are the same. In fact, each is unique in many important respects. This is highlighted in the dissenting opinion. This uniqueness (i.e. the purpose of the employers' organization) must be considered in assessing the behaviour that is complained of as amounting to just cause for the termination. If the behaviour is to be considered and assessed in context, then that must include the context of the employers' operation and business. Behaviour that is seen as insignificant in one employment context might be seen as exceedingly serious in another as it completely undermines the underlying purpose of the employers' business.
The business context is is often a driving force when looking at off-duty-conduct and whether it amounts to just cause. So why should this be different when looking at "on-duty conduct"?
It remains to be seen whether the IBEW will seek leave to appeal the decision to the Supreme Court of Canada. Given the dissenting opinion, I would have thought that they at least have a shot at getting leave. Who knows, but it would be nice if the Supreme Court of Canada gave us some definitive guidance on this issue.