Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends 6 | October 25, 2017 peg to play a golf course there. At the time, he thought Li felt the same way about him, though she was 32 years younger. In the fall of 2010, Willow Park decided to revitalize its sand traps. e assistant su- perintendent devoted most of his time to the project in the ensuing months, so in May 2011 Watkins promoted Li to the position of assistant superintendent along with a pay raise. He also wrote a letter of recommenda- tion that said Li had held that title for three years before then. Around the same time, Watkins allowed Li to move a desk into his office that he shared with existing assistant superinten- dent. He also gave her a parking space beside his in front of the grounds office building and allowed her to come in one-and-one- half hours later than other grounds crew employees, ostensibly because she couldn't find child care early in the morning. Because of Watkins' preferential treat- ment of Li, other employees started becom- ing discontented and unhappy. is was further fuelled by Watkins and Li attending a social function together at the golf course. Soon after, Watkins admitted to the origi- nal assistant superintendent that he was "smitten" and "in love" with Li, though he said he didn't have a sexual relationship with her. Li herself wasn't interested in a roman- tic relationship, and when she realized Wat- kins' feelings, she told him she wanted their relationship to remain professional. By the summer of 2011, they agreed to not see each other outside of work. Wouldn't take 'no' for an answer However, Watkins continued to send Li text messages about his feelings and her rejection of him. She became frustrated with his personal messages and feelings, as the job was important to her and she was a single mother. At one point, Li went to his home and asked him personally to not text or email her outside of work or for reasons other than work. Watkins acknowledged Li came to his house to speak to him but said it was because they had a heated argument about another issue. Despite this meeting, Watkins sent more text messages to Li, including when he was drunk after attending a golf tournament in July 2011. He also sent emails calling himself a fool and discussing her appearance. On one occasion, Watkins asked Li if she watched pornography — which he justified as "just friends talking" and asked because she had "been around." e tension in the grounds crew increased as the summer went on, both between Wat- kins and Li and among the rest of the staff. In October, Li asked Watkins about attend- ing an industry conference in Las Vegas, but Watkins said Willow Park would not be sending her. ings became heated and they both swore at each other. Watkins later characterized this as "locker room talk" and didn't apologize to Li. However, Li reported two other occasions when Watkins called her a vulgar name. Other employees usu- ally overheard their arguments and, since they were already frustrated with her earlier preferential treatment, the atmosphere con- tinued to deteriorate. Another incident in the summer of 2011 involved a female seasonal employee who was left behind on the course when the rest of the crew left for the day, contrary to course protocol requiring all grounds crew employ- ees to leave at the same time. e assistant superintendent apologized to the worker, but Watkins called the worker into his office, screamed at her, and made personal attacks against her and her family, who were mem- bers at the course. He then fired her on the spot, though she only had a few days left in her summer job before leaving for university. e assistant superintendent and the course horticulturalist both complained about the volatile and disruptive relation- ship between Watkins and Li. e assistant superintendent in particular felt caught in the middle because Watkins confided in him about his feelings. In September, the Willow Park manage- ment committee noticed Li was calling herself an assistant superintendent on the course's website and heard about what was going on. When asked, Watkins admitted he had feelings for Li but said nothing had come of it. He was told Li could not be assistant su- perintendent because there already was one, so Li should be reclassified. Watkins told the assistant superintendent that he had been told to fire Li but didn't have the heart to do it, so he asked him to do it. e assistant superintendent refused. On Oct. 26, Li came to work with a letter for the management committee stating she was being sexually harassed and felt unsafe at work. She didn't ask for Watkins to be fired but said she needed to feel safe. After she dropped off the letter, she noticed Wat- kins following her around the course as she worked, yelling at her and demanding she meet with him. Li told management about Watkins' behaviour and later that day, they read her letter. e next day, Watkins was summoned before the management committee and he denied the allegations in Li's letter. He was told he had to resign, and they offered him a $25,000 settlement. Watkins initially ac- cepted but later rejected it, so the committee terminated his employment for refusing to follow the direction to demote Li, not dis- closing his relationship with Li, and the ef- fect of the relationship on other employees. Watkins sued for unjust dismissal, claiming Willow Park didn't properly in- vestigate Li's complaints against him. Conduct 'reprehensible': Court e court noted that important factors in the circumstances were that Li was de- pendent on her job and Watkins was her direct superior, not to mention the "only high-ranking employee with whom she had virtually daily contact." is made Watkins' increasingly aggressive conduct towards her all the more reprehensible," the court said. e court found that Li gave Watkins plenty of indication that she wasn't interest- ed in pursuing a romantic relationship and wanted things to remain professional, but Watkins continued to pressure her and then treated her poorly. He knew and understood Li's discomfort, but continued to send inap- propriate messages. is placed his conduct "at the more serious end" of the harassment scale, the court said. In addition, the court disagreed with Wat- kins' argument that the harassment should be considered less serious because Li didn't want him fired. "It is not up to the victim of sexual harassment to determine the proper course of corporate action nor to take re- sponsibility for the future employment pros- pects of the harasser," said the court. e court determined that Watkins' con- duct was serious enough that it didn't re- quire a warning before termination, since as a management employee he should have known better and had a higher standard of conduct. Given the effect of his behaviour on Watkins, the other employees, and the working environment — along with his fail- ure to recognize that it was unacceptable — termination was justified, said the court. e court acknowledged that Willow Park failed to conduct an adequate investigation, as it didn't speak with Li and didn't allow Watkins adequate time to respond to the allegations, but Watkins' blanket denial in spite of the evidence from Li, other employ- ees, and the management committee's own observations made it difficult to substitute discipline short of termination. Had the golf course conducted an investigation, "it would have simply confirmed Ms. Li's allegations and the information coming from the other employees," said the court. "(Watkins') behaviour was directly incon- sistent with his obligations to manage his de- partment in a professional way and ensure a safe and respectful workplace for his sub- ordinates," the court said in upholding the termination. For more information see: • Watkins v. Willow Park Golf Course Ltd, 2017 CarswellAlta 1678 (Alta. Q.B.). Boss continued to send personal texts and emails to the worker « from GOLF COURSE on page 1

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