Usually, the person claiming to have been harassed sues the employer. In a 2004 B.C. case, the harasser sued the employer for wrongful dismissal.
This is the bad behaviour story of a spurned co-worker in a union office. His romantic desires were unreciprocated. He was then accused of revenge. Years later, the employer found out and launched investigations. The employer fired the employee with 25 years of service.
Usually, the person claiming to have been harassed sues the employer. In this case, the harasser sued the employer for wrongful dismissal.
The Sexual Harassment and Retaliation
Wayne Brazeau, 61, supported and mentored Christine Pynaker, 35, while they worked together in a union office in Calgary in mid-1993. He helped her get a big promotion and – now recently divorced – also took a romantic interest in Pynaker, who was single.
When on a trip to New York, he sent her cards and other messages. These cards read:
It was wonderful to hear your voice today. It’s the next best thing to a “HUG” … I think you know I care about you, but I wonder if you realize how much … And I wonder if I can ever find the words to tell you … You are truly a wonderful person and care for you ever so much [sic] … Please take care, I really do miss you and look forward to hearing your voice on the phone … This day may have not been the best, but you are in every way. Have a pleasant weekend and take care!! With all the love a person has to offer to another, Wayne.
He signed these cards “O and Xs With Love.” On some, he drew a smiling face heart, which he called a “Happy Hart” and used postage stamps with “Love” printed on them.
He did not express romantic interest to Pynaker directly. He was “scared of the answer.” She did not return the feelings or mention the messages partly because of the age difference.
While successfully mentoring Pynaker at work, Brazeau continued to lavish her with dinners, flowers, jewelry and other expensive gifts – which she accepted. He paid for her flight to Spain at Christmas 1993, and sent her off with this handwritten message:
Christine, there are as many beautiful people on earth as there are stars in the sky and you are the most beautiful of them all in every sense of imagination a person may possess.
May you have a restful pleasant vacation, all my thoughts, dreams and wishes will be with you.
Should you be looking for a vacation and lifestyle full of frolic some fun, happiness, romance, kindness, caring and sincerity, you will have to wait until you find within yourself, that I am that person.
A writer-poet, I am not, but a person who is deeply in love with you, I am that. Christine, lifestyle, happiness and romance has no natural boundaries, only those perceived by people.
Another card had a picture of a baby in diapers on the front saying, “I was sitting here thinking of you and I started to feel warm all over.” Inside the card read: “Either it’s love or I just wet my pants.” Brazeau wrote under this, “I didn’t wet my pants … Take Care With Love Wayne.” He dismissed it as a “fun card,” but Pynaker did not find it funny.
As Brazeau’s discomfiting attention increased, Pynaker withdrew and confided in others. She was the only woman in her position at the union and she did not want to jeopardize that by complaining about Brazeau. In April 1994, she returned some of the gifts with a note that they were unwelcome. She added:
I find your remarks and comments often condescending and sexist. Your seemingly obsessive preoccupation with my whereabouts and paranoid judgements concerning my friends and associates is causing me a great deal of discomfort. At no time in the past, present or future has or will a ‘personal relationship’ exist. I am strongly suggesting that you refrain from continuing this type of destructive behaviour.
There was doubt whether it went down exactly like this, but Brazeau did get the general message that Pynaker was not, and never would be, romantically interested in him. He soon transferred to Vancouver but remained in work-related contact with Pynaker in Calgary. He continued to send her occasional flowers and cards. When she was in Vancouver, she joined him for dinners and musical shows for which he paid. She also sent him some personal comments and jokes, as well as details about her sleep patterns and breakfast plans.
In late 1996 – some three and a half years after this began – Pynaker called Brazeau and berated him, to leave no doubt about her lack of interest in him. She warned him to stop harassing her.
That rebuke worked. Brazeau’s cards, gifts and personal comments ended.
The next few years of working together were fine. Then Pynaker claimed Brazeau withheld work information from her and did not co-operate. Other staff members started talking about their relationship. Eventually, this travelled to senior management, which conducted several investigations. In early 2001, at age 69, Brazeau was fired for cause. He sued.
Judicial Decisions
The trial judge did not find Brazeau credible but also found Pynaker’s conduct “puzzling” in how she “played Brazeau like an old fool” and may have been self-interested in the way she interacted with Brazeau. Madam Justice Nielson found Brazeau sexually harassed Pynaker “in the middle of the spectrum” of seriousness. The harassment started in 1994 and stopped in 1996 after Pynaker made it clear Brazeau’s advances were unwelcome. Brazeau retaliated in isolated incidents in 1998 and 1999.
The court noted the behaviour was not so serious as to destroy the working relationship and justify summary dismissal. Pynaker did not seek his removal, and Brazeau was a longtime loyal employee with an otherwise clean disciplinary record. The court found Brazeau was “entitled to a clear warning from [his employer] to the effect that, if his harassment continued, it would lead to his dismissal.”
Brazeau had not received any warning from the employer to cease the harassment (retaliation). Therefore, his firing was wrongful and unjustified. He was awarded two full years of salary and benefits in compensation. This amounted to more than $250,000 in 2004.
The employer appealed. The split British Columbia Court of Appeal dismissed the appeal, finding no error in the trial decision.
Commentary
Relationships at work are often complicated. Workers say and do things that irritate co-workers all the time. Feelings, interpretations and intentions are rarely identified or discussed. Bickering, grudges, bad jokes, and ordinary actions and omissions become contested with accusations, denials and partial recollections.
How does one pursue a romantic interest without harassing? On the flip side, how does one first understand the dynamic, then respond and decline effectively without impairing one’s career? What should the new, ongoing, merely collegial relationship look like?
When special attention and favours shown to a victim promptly cease, new interactions may look like retaliation. The harasser extending too many supports and corporate resources to the object of his affections, can appear punitive when resetting to equilibrium. The former harasser can now appear uncooperative and rude, which can be interpreted as retaliatory.
Cumulative effects of every isolated interaction may be ultimately forced through the adversarial lens of harassment analysis. Obtaining justice for each alleged harasser, victim and employer is more difficult when the rebuffed co-worker scenario extends over, as in this case, eleven years. This case demonstrates the exceedingly difficult challenge to piece together what happened (and with what intentions) years prior in the workplace.
The critical lesson of the case is that employers, where the working relationship has not completely broken down, have a duty to warn bad-acting workers. They must outline the impugned conduct and its wrongfulness, and set out the disciplinary consequences if that conduct continues. Brazeau did not win two years of salary and benefits because he sexually harassed a co-worker. He won because the employer fired him without first warning him and allowing him to redeem himself.
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Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Peter Bowal
