Psychological harassment remains a significant legal and organizational challenge for employers, and recent legislative changes in occupational health and safety have further reinforce the importance of having effective prevention and management mechanisms in place.
In a recent decision, Québec’s Administrative Labour Tribunal (“ALT”) clarified employers’ obligations with respect to psychological and sexual harassment in the workplace and the disciplinary assessment of employee misconduct. Our analysis highlights the practical lessons employers can draw from this decision.
An Employee Dismissed After Inappropriate Conduct Toward a Colleague : Background
The complainant had worked for Solutions Digitales SES-Imagotag Ltd. for nearly ten years and maintained good relationships with several managers. As part of his duties, he was frequently required to travel and enjoyed a high degree of autonomy.
In February 2023, he attended a trade show in Las Vegas with, among others, a 23-year-old events coordinator who had recently joined the company.
During the trip, he engaged in a series of inappropriate behaviours :
- inappropriate and insistent messages;
- a suggestion that they share a room;
- invitations to activities of an intimate nature;
- intrusive and intimate comments;
- persistent staring;
- unwanted and unsolicited touching and attempted touching.
Feeling uncomfortable, the coordinator changed rooms and reduced her participation in the activities. Upon returning home, she reported the incidents to her supervisor. The employer promptly launched an internal investigation and suspended the complainant with pay. At the conclusion of the investigation, the employer dismissed the complainant after determining that the allegations against him were substantiated and constituted serious misconduct.
The complainant challenged the decision before the ALT, arguing that his actions had been misinterpreted, that he had been subjected to an unfair investigation, and that dismissal was a disproportionate disciplinary measure.
The Tribunal Upholds the Employee’s Dismissal : Reasons for the Decision
1. Assessment of Credibility
The events coordinator presented a coherent and consistent version of events, supported by contemporaneous evidence (including text messages, screenshots, and emails).
By contrast, the complainant’s version appeared to evolve over time, was contradictory, and tended to downplay the seriousness of the conduct. The ALT therefore gave greater weight to the coordinator’s testimony.
2. Conduct Characterized as Psychological and Sexual Harassment
The complainant’s conduct during the business trip was unwanted, repeated, and intrusive, undermining his colleague’s dignity and, in some cases, her physical integrity. This conduct falls within the definition of sexual violence.
3. Serious Misconduct and No Prospect of Rehabilitation
Having found that the complainant committed serious misconduct, the ALT considered several aggravating factors in assessing the dismissal, including the age and status disparity, the context in which the events occurred, the complainant’s seniority, his failure to acknowledge wrongdoing, and his attempt to shift the blame onto his colleague. These last two factors, in particular, led the ALT to conclude that there was no real prospect of rehabilitation on the complainant’s part.
Accordingly, despite the complainant’s lack of prior disciplinary history, the ALT concluded that the employer was justified in departing from the principle of progressive discipline, as the bond of trust had been irreparably broken.
4. Fair Internal Investigation
The ALT rejected the argument that the investigation had been unfair. The employer acted diligently, met with all parties, and based its decision on complete and well-documented evidentiary record.
What Best Practices Should Be Adopted Regarding Psychological and Sexual Harassment?
1. Conduct a Prompt, Thorough, and Objective Investigation
As soon as a situation is brought to its attention, even in the absence of a formal complaint, the employer must act diligently and rigorously. It is incumbent on the employer to intervene promptly, conduct a thorough and impartial investigation, carefully document each step of the process, and, at the conclusion of its analysis, impose measures proportionate to its findings.
A thorough, diligent, and well-documented investigation remains the employer’s best protection, both with respect to liability and in the event of any challenge to the disciplinary measures ultimately imposed.
2. Beware of Persistent Myths About Sexual Harassment
The “Misunderstood Joke”
The ALT clearly rejected the argument that the words and actions at issue were merely jokes or a form of misunderstood humour. In harassment matters, intent is secondary; what matters is the unwanted nature of the conduct and its impact on the person subjected to it.
The Presumed Behaviour of a “Genuine Victim”
The fact that a person remains polite or tries to avoid conflict does not imply consent, and the absence of a direct and explicit refusal or an immediate report does not amount to acceptance.
Sexual Harassment Does Not Necessarily Require Physical Contact
Persistent invitations, suggestive looks, or intrusive messages may be sufficient to constitute harassing conduct, particularly in a context of hierarchical imbalance.
3. Disciplinary Management of Harassment Situations
This decision ultimately reiterates several key principles for employers in disciplinary matters :
- Anti-harassment rules apply wherever the employee is located in the course of employment, including business trips, social activities, and events held abroad.
- The employer must take its obligations regarding psychological and sexual harassment into account when imposing disciplinary sanction.
- A permissive corporate culture does not excuse harassing conduct.
- Differences in age, status, or authority are aggravating factors. Managers must be particularly mindful of their responsibilities.
- Progressive discipline may be set aside when the misconduct is sufficiently serious or where it is unlikely that the employee will change their behaviour.
- The employer is not required to comply with principles of procedural fairness when exercising their management rights.
Through this decision, the ALT reaffirms that psychological and sexual harassment, even when disguised as humour, undermines employees’ dignity and requires a prompt and firm response.
In a context where these issues are particularly sensitive and highly publicized, proactive management of harassment and violence is not only a best practice, but also a legal obligation.Prevention, training, and a structured response remain essential to ensuring a safe workplace.
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