Sexual Harassment and Abuse of Power by Supervisor Constitutes Just Cause
for Dismissal
Bannister v General Motors of Canada Ltd, 1994 CanLII 7390 (Ont Sup Ct J), rev’d
1998 CanLII 7151 (Ont CA)
Facts
Bannister worked as a security supervisor during the evening and night shifts. Most of
the female staff in his department were summer students between 18 and 23 years of
age. Bannister, who was in his late 40s, had worked for General Motors for 23 years
when one of the summer students complained about his unwanted sexual approaches
and comments. GM’s investigation revealed that at least five women had similar
complaints, alleging that he tried to kiss them, asked them to sit on his knee and give
him a kiss, and described pornographic movies using sexual gestures.
During its investigation, the employer interviewed Bannister four times, and each time
he denied any wrongdoing. He remembered some of the alleged incidents but did not
believe they constituted sexual harassment. The employer terminated him for cause,
and Bannister sued for wrongful dismissal. The trial judge found that Bannister was not
“beyond redemption,” and in light of his 23 years’ service, granted him 21 months’ pay
in lieu of reasonable notice (roughly $120,000). The employer appealed.
Relevant Issue
Whether Bannister’s conduct constituted just cause for dismissal.
Decision
The Ontario Court of Appeal found that the employer had just cause to dismiss
Bannister. It acted with “care, responsibility and sensitivity” in investigating the initial
complaint. The trial judge erred in focusing on Bannister’s length of service and good
record because it ignored two important duties of the employer: the duty to protect the
members of its workforce from offensive conduct and the duty to protect the corporation
against civil suits.
The Court of Appeal emphasized Bannister’s supervisory role. A supervisor who abuses
his power by condoning or creating a poisoned working environment for women is not
doing his job. As for the argument that a modern industrial plant is a rough work
environment where offensive commentary is common, the court stated, “It is not a
question of the strength or mettle of female employees, or their willingness to do battle.
No female should be called upon to defend her dignity or to resist or turn away from
unwanted approaches or comments which are gender or sexually oriented. It is an
abuse of power for a supervisor to condone or participate in such conduct.” As a result
of its finding of just cause, Bannister was not entitled to any damages for wrongful
dismissal.
In Bannister, the employer’s proactive stance on the issue of sexual harassment and
the procedural fairness it exhibited in its investigation helped it justify the dismissal. It
had permanently posted a copy of its sexual harassment policy throughout the plant.
The employee had attended a sexual harassment seminar designed for supervisors,
where the employer informed supervisors that sexual harassment could result in
dismissal for cause. The employer’s investigation of the complaint was thorough and
well documented. During the initial interviews with other employees, the name of the
employee under investigation was not mentioned. The other employees were asked
whether they had general information with respect to any human rights or sexual
harassment issues. Bannister acknowledged that the employer had given him every
opportunity to explain his side of the story and had interviewed everyone that he had
asked to be interviewed about the situation. Furthermore, the fact that the employee
repeatedly denied that his actions constituted misconduct raised a question as to
whether his behaviour could change.