Life and the Law

Susan Kootnekoff is a lawyer with Inspire Law. Phone: 250-764-7710. Email: info@inspirelaw.ca. On the web: inspirelaw.ca. The content of this column is intended to provide general thoughts and general information, not to provide legal advice.

With Valentines in the air, we may think of many who have met their soul mate at work. Becoming romantically involved with someone you work with is not illegal.

It can be problematic, though.

This is especially so if a power imbalance is involved. When a superior has a relationship with a subordinate, concerns arise that it may be a form of harassment and abuse of power rather than a genuine consensual relationship.

Such a romance may give rise to favouritism or other conflicts of interest. Morale or performance problems may arise.

If the relationship breaks down, this can obviously lead to problems.

Allegations of sexual or gender-based harassment in the workplace are not uncommon, particularly in the wake of the #MeToo movement.

Sometimes these allegations are well founded. Sometimes they are not.

Sometimes an ambitious employee intent on climbing the corporate ladder makes unfounded allegations about a supervisor, as an internal political manoeuvre.

Employers have legal obligations to foster a harassment-free workplace.

Allegations of harassment of any type highlights the potential that the employer may be liable for discrimination or harassment. The employer must properly investigate any allegations made.

Harassment investigations can be tricky. They may include many legal issues which must be approached carefully in order to assure the integrity of the investigation.

In van Woerkens v. Marriott Hotels of Canada Ltd., the employer dismissed a senior sales and marketing executive for inappropriate behaviour at a company Christmas party. He had touched a female subordinate, who he knew was drunk and propositioned her after the party, the next day and a month later. When questioned about it during the employer’s investigation, he was dishonest. The B.C. Supreme Court upheld the dismissal.

In one Ontario case, a man in a senior management role and a female subordinate were involved in a consensual relationship. They were both married. The husband of the subordinate discovered the relationship and reported it to the employer. The male was dismissed. The court upheld the dismissal.

Not all employers are this fortunate. It is not uncommon for employers to either not investigate or to investigate poorly. This can mean the employer will not be able to base any disciplinary action or dismissals on the investigation.

A supervisor who engages in a romantic relationship with a subordinate may well find him or herself out of a job. Worse yet, a reputation earned over decades can be destroyed in a flash. 

Sometimes, employers jump to the wrong conclusion without a proper investigation.

If an employer acted prematurely or in haste, or did not conduct a proper investigation, it will be unable to rely on its investigation to defend its decision. It may be on the hook for substantial wrongful dismissal damages to the dismissed employee.

In an attempt to avoid these issues altogether, some employers have policies that prohibit workplace relationships.

Others require relationships to be disclosed to the employer.

Still others require conflicts of interest to be disclosed.

Merely expressing a romantic interest in a subordinate can lead to problems.

Whether you are in a supervisory role and thinking of showing romantic interest in a subordinate, or you are on the receiving end of advances from such a person, tread carefully, and know your rights.

Susan Kootnekoff is a lawyer with Inspire Law. Phone: 250-764-7710. Email: info@inspirelaw.ca. On the web: inspirelaw.ca. The content of this column is intended to provide general thoughts and general information, not to provide legal advice.