Office romance is a tricky business

Date: 2009
Author: Daniel A. Lublin
Publication: Metro

Employee’s interest in a “sexual escapade” cost him the case

For Stan van Woerkens, the Garden of Eden simply had too many forbidden fruits. Hired to manage at Marriott’s Renaissance Vancouver Hotel, Woerkens’ career was on the up and up. But life can be lonely at the top. When he confused a subordinate’s flirtations with sexual advances, Woerkens’ behaviour at the company’s holiday party became more than a forbidden dalliance it was the recipe for disaster.
As the most senior employee at the annual holiday party, Woerkens acted as the host and master of ceremonies. The evening began with a champagne reception and ended with an after-party at the hotel for a small group of staff.  According to Woerkens, as the evening progressed, one of the female associates came on to him.  She sat on his lap at the party and danced suggestively with him after dinner, inviting him to her room.
When the main party died down, a group of employees, including Woerkens and the associate, went up to one of the hotel’s rooms for an after-party. Woerkens said that he may have inadvertently touched her when the two were standing alone in the bathroom. She remembered the event differently. According to her, Woerkens pushed her against a counter, kissed and then fondled her. The two left the party at separate times and Woerkens later called her room.
The evening ended uneventfully. It wasn’t until later that the associate, believing she had been drugged and taken advantage of, filed a complaint against Woerkens with the hotel.
Without any advance notice of the complaint or an investigation, Woerkens was called into an office and accused of sexual assault. Pressing him for a confession, Marriott’s senior investigator told Woerkens there was video evidence supporting the complaint. Woerkens denied he had done anything wrong and took his time preparing a written statement responding to the allegations but omitting any mention of having been alone at the after-party with the complainant or later calling her room.
Deferring to the investigator’s recommendations, Marriott’s general manager concluded that Woerkens had inappropriately touched the female employee and lied during the ensuing investigation. He then fired Woerkens for cause.
Arguing that he was a victim of a flawed investigation and denying that he had done anything wrong, Woerkens recently sued Marriott for wrongful dismissal.
The court concluded that Woerkens’ recollection of the events did not carry the conviction of truth. Since he knew that the complainant was intoxicated, it was likely that Woerkens fondled her at the after-party and later called her room, interested in pursuing a “sexual escapade”, according to Justice Paul Pearlman, who presided over the case.
Where the conduct complained of involves a manager and a subordinate employee, Canadian courts continue to apply a liberal definition to the meaning of harassment.  In upholding Woerkens’ dismissal, the court found that his behaviour at the party amounted to sexual harassment and that it was no defence for him to rely on a clearly flawed investigation into the events.  Woerkens’ actions, whether they were welcome or not, coupled with his dishonesty during the ensuing investigation, were enough to sway the court’s view.
Employees cannot escape liability because the actions giving rise to a complaint have occurred after working hours or away from the workplace.  Even a tenuous connection to work is enough for an employer to intervene.