By Jeffrey R. Smith – Feb 26, 2024
A British Columbia arbitrator has upheld the dismissal of a male worker for knowingly submitting a false sexual harassment complaint against a female colleague.
“The [worker] presented factual scenarios that at first blush seemed to be implausible, but his explanations didn’t add an element of plausibility or objective evidence to substantiate them,” says Michael Penner, a labour and employment lawyer at Kent Employment Law in Victoria.
The worker was a full-time faculty member in the Department of Applied Communications and Public Relations at Kwantlen Polytechnic University in Surrey, BC, since 2013.
In January 2018, a new female instructor was assigned to the office shared by the worker and other faculty members. The worker was on an “off semester” at the time, so they only met once before the summer semester began in May.
According to the worker, his female colleague called him “cute” and “easy on the eyes” and often commented on his style and appearance. She also called him “vagina bait” on one occasion and said it was his responsibility to help her because she was the “baby” of the department.
Alleged harassment
In early September 2018, the worker claimed that the colleague propositioned him by suggesting at lunch that he could come to her house for “dessert” when her husband wasn’t home. He said he was uncomfortable and jokingly asked about her oral hygiene.
Later that month, the worker alleged that the colleague insisted he look at her new vehicle. He reluctantly got inside and she moved in for a kiss, but he deflected it. Later, she brushed her breast against his arm while he was showing her a lesson plan in the office, he said.
In mid-October, the worker claimed that the colleague walked over to his desk, stood behind him, and bent over to plant a kiss on his mouth. He said he pushed himself back and demanded she go back to her corner of the office.
The worker didn’t return to the office for two weeks, after which the colleague had moved to a different office. The colleague had requested a move because she was feeling uncomfortable around him and she provided a written account of her interactions with the worker for the department chair.
In late November, the worker was told that a complaint had been filed against him. He thought it was from the female colleague, so he provided a written document of his own allegations to the union. However, the complaint was unrelated to the female colleague.
The complaint against the worker was dismissed in August 2019 and there had been no further issues with the female colleague, so the worker decided not to do anything further.
Sexual harassment complaint
On Dec. 3, 2020, the worker had a heated email exchange with another colleague. The worker complained of “eight years of toxicity” and informed HR that he wanted to file a “discrimination complaint against faculty members” because the dispute made everything “bubble up.”
The worker filed a formal sexual harassment complaint on Feb. 10, 2021, describing his allegations against the female colleague. The university hired a third-party investigator to look into the matter.
The university did everything correctly when both the worker and the female colleague made it aware of the situation, says Penner.
“[The colleague] asked for accommodation and they put her in a different office, and they immediately hired a third-party investigator [when the worker made a formal complaint],” says Penner.
The female colleague denied the worker’s allegations, alleging that it was he who commented on her clothing and appearance and called her “cute.” She also denied that she propositioned him for sex and said the worker made an inappropriate comment about oral hygiene.
As for her new vehicle, the colleague said the worker wanted to see it, he didn’t get in, and she didn’t try to kiss him. She also denied touching her breasts to the worker’s arm and said she asked him not to call her “cute,” but the worker said “that’s how I talk.”
As for the day the worker said she kissed him, she said she may have gone over to his desk but she didn’t go behind him or kiss him. When she returned to her desk and turned her back on him, the worker said, “It’s like a feminist thing, you have to be on top.”
The colleague requested a different office in October 2018 because of her discomfort around the worker, she said.
The investigator issued a report in July 2021 concluding that the worker’s allegations were “knowingly false.” The worker reiterated his complaint.
Just cause
The university considered the written account of the colleague and the worker’s allegations, and it accepted the investigator’s conclusions. It terminated the worker’s employment on Oct. 26 for false and bad-faith allegations and lying about incidents that “might one day form the basis of a complaint against him.”
The worker grieved his dismissal.
The arbitrator had issues with the worker’s credibility, as his evidence wasn’t straightforward and often strayed from the subject. He also described himself as “English as a second language” so he might be misunderstood, but the arbitrator found him to be articulate with “an advanced command of the English language.” In addition, he showed a tendency to modify his account between his complaint and his testimony, the arbitrator said.
On the other hand, the arbitrator found the female colleague to be clear and direct in her version of events. She was candid in describing her professional interactions and her unease around the worker, the arbitrator said.
Based on the evidence from each party and their observed characteristics, the arbitrator found that it was more likely that the worker initiated conversations about his appearance and the phrasing of the alleged comments was more in the worker’s style of speaking – for example, the worker testified that others described him as “cute” and “easy on the eyes.”
False complaint
The arbitrator also pointed to emails in which the worker used language suggesting that their relationship was closer than what the colleague was comfortable with, and inconsistent descriptions of the worker’s new vehicle supporting the colleague’s version of events.
In addition, the arbitrator found that the configuration of the office didn’t support the worker’s claim that the colleague brushed her breast against his arm or bent over him and kissed him. The position of the desks made it impossible to lean over and touch his arm, and there wasn’t room for her to stand behind him and crane her neck to kiss him and then have the worker push his chair back, said the arbitrator.
The arbitrator determined that the colleague’s account was “in harmony” with most of the evidence, including her written account to the department chair, while the worker’s version was inconsistent and not credible. Since their versions of events were completely opposed, this meant that the worker was lying and knowingly filed a false complaint of sexual harassment, the arbitrator said.
“The arbitrator gave [the worker] every chance to prove his case and she recognized that there wasn’t the possibility of middle ground,” says Penner. “There were two opposing narratives and, the way the stories were laid out, [the arbitrator] had to pick one.”
Given the seriousness of knowingly filing a false sexual harassment complaint, the arbitrator found that summary dismissal was appropriate. The grievance was dismissed.
Burden of proof
Although the employer was successful, relying completely on the female colleague’s evidence was risky, says Penner.
“That puts a lot of pressure on the recipient of the abuse because she’s the one that has to ultimately prove that the employer had just cause,” he says. “I think perhaps calling the investigator would lighten that load, or calling a co-worker to say this guy’s behavior was generally off-putting, in order to substantiate her testimony.”
“These types of processes can reopen wounds that are very difficult to heal, and all litigation is stressful,” adds Penner. “So as an employer you want to distribute the evidentiary load, particularly when you have a third-party investigator whose mandate probably included the potential that they would have to testify.”
It can be difficult after a harassment complaint to avoid prejudicing matters against an alleged perpetrator when taking immediate action such as separating the parties or issuing an administrative suspension, says Penner.
“If there isn’t a finding of sexual harassment, it’s very difficult for that employee to then return and be treated normally by his colleagues,” he says. “But at the same time, the seriousness of this issue requires responses that ensure every employee is being provided a harassment-free environment, so there are hard decisions that immediately come into play.”
“The important thing that this employer did was, when confronted with the situation, they immediately sought out an independent investigator who would typically apply due process and, in the meantime, you separate the parties so there isn’t any possibility of ongoing harassment.”
See Nasir and Kwantlen Polytechnic University (Termination), Re, 2024 CarswellBC 211.
