Sexual harassment in the faculty room

A male high school teacher was terminated after making several sexual comments to his newly employed, significantly younger female colleagues. Several of them were employed on a temporary basis.

The high school had a sexual harassment policy in place, which described the process in case of sexual harassment. Among other things, the policy outlined the importance of speaking up in the event of sexual harassment. Also, it provided that the high school would start by issuing an informal warning and, later, a written warning before proceeding to termination or relocation.

According to the female colleagues, the employee had made sexual comments about their clothing, bodies, and cleavage, among other things. For example, he had said, “if I do that, will I get a kiss?”, “you are dressed for sex”, and “I like your cleavage”.

When the management became aware of the matter, a meeting was scheduled for him with his immediate manager. After that, he did not change his behaviour and was, consequently, called in for a second meeting with the head of education. On that basis, the management decided to terminate him. The management had not taken any notes during the meetings with the employee.

Harassment was so severe that a warning was unnecessary

The judge concluded that the comments made by the employee were gross harassment to the extent that it was lawful to terminate him without a prior warning.

During the first meeting, the employee’s immediate manager had not issued an actual warning. Nothing was written down during the meeting. Also, the immediate manager had difficulty remembering the conversation.

Therefore, the judge had to assess whether the sexual harassment had been so severe that a warning was unnecessary. In this context, the judge noted that the employee could not use the sexual harassment policy to avoid termination without warning in a case where the actions were gross sexual harassment.

It was unclear if the employee had admitted to his actions during the second meeting. Again, as there was no written documentation from that meeting either, the judge did not find that the employee had admitted to his comments. For that reason, the explanations made by the female colleagues were crucial to the assessment, and their explanations were coherent and credible.

The judge emphasized that the employee should have been particularly aware of his behaviour after the first meeting. Additionally, it played a significant role that the women were new hires and primarily employed temporarily. The nature of their employment made it especially difficult for them to speak up against sexual harassment. At the same time, some of the comments were very offensive. For example, the employee had stated that he would lick off a stain on the chest of a colleague’s blouse.

IUNO’s opinion

This case shows that both seniority and employment terms of those who are subjected to harassment impact how offensive harassing comments are perceived and, thereby, whether it is lawful to terminate the harasser without prior warning.

Moreover, the case is a good example of the importance of being able to document matters and statements. This is namely important in cases regarding sexual harassment, where the outcome relies heavily on explanations and the credibility of those making them. Companies should always take notes during meetings and conversations that may have consequences for the employees.

IUNO recommends that companies have policies and rules in place on how to handle sexual harassment cases, including employment-related sanctions as a result of harassing behaviour. On top of that, management should have internal rules requiring notes to be taken during conversations regarding sexual harassment to be able to document the legality of a potential termination.

[Industrial arbitration of 30 November 2022 in case FV 2022-791]