A long-time WestJet Airlines employee who won a grievance over his firing for creepy questioning of female colleagues about their breasts, their daughters’ sexual development and other intrusive subjects has had his victory overturned by the court.
The Federal Court of Appeal ruled that a Canada Industrial Relations Board (CIRB) decision that the man’s comments were not sexual in nature and therefore not sexual harassment was unreasonable.
The Calgary-based airline now has another chance of having him dismissed with cause and not have to pay him restitution, as the CIRB had ordered.
The case, decided by the court Friday, ends a strange, long-running dispute over the boundaries of workplace interactions.
The male worker was a former airline pilot employed by WestJet in several capacities over the years, ending as an advisor in an office unit. He had 23 years of service. He was not part of a flight crew at the time of the complaints.
He was fired in 2021 after a WestJet investigation of a female co-worker’s harassment complaint. He challenged the decision to the CIRB and the adjudicator deemed his conduct unworthy of firing in 2023. WestJet appealed that decision in court.
The court assessed the details of the case and the board’s decision.
At the CIRB hearing, WestJet called six witnesses, including the woman who filed the complaint and two other female employees. The fired man also testified, as did his wife, and another former employee. The board issued a confidentiality order on the identities of those involved, which the court followed.
The board heard WestJet fired him after its investigation found five areas of concern stretching more than a decade, including: he solicited information from female colleagues about their sexual development and the sexual development of their female children; he asked female colleagues intrusive and inappropriate questions of a sexual nature; and he shared an inappropriate level of detail regarding intimate details of his family dynamic.
WestJet told the board his conduct was considered both sexual harassment and a breach of several company policies.
At the board hearing, female colleagues described his repeated comments and questions as “cringe-worthy,” inappropriate, tone-deaf, having an “ick factor” and “creeping them out.”
The woman who filed the complaint said he at least twice mentioned her breasts and how her clothes fit and asked about her daughter’s menstruation. He was accused of talking about his daughters in a disturbing way, including describing one of his daughters wearing a bra and tight leggings, noting her breast development and saying: “from behind she looks like a 25-year-old. She’s so womanly now, yet still a child.”
A former colleague said he spoke several times about showering with his daughters. Another said he asked questions about breastfeeding, lactation, and what it felt like on the nipples.
The comments made them feel uncomfortable. They sometimes told him to stop and sometimes walked away. One said she changed jobs partly because of his inappropriate comments.
The complainant told the board she did not fear for her personal safety around him.
WestJet told the board that when investigators asked him about these complaints, he portrayed himself as the victim. He denied his conversations were “sexual in nature” and said “it was his right, if not his duty, to tell the newest member of his team she had a ‘resting b—h face’ on two occasions,” but stopped when asked to.
The man’s position at the board hearing was the complaints were by a “hypersensitized” colleague who took things out of context.
“He admits to discussing breastfeeding and menstrual cycles with his female colleagues and being interested in, and compassionate about, the birthing process and childhood development. He submits he is a loving father who is curious and seeks to understand and anticipate how his own children, as well as those of his colleagues, will grow and mature.”
He told the board his upbringing was in an open family that often talked about personal subjects.
The comments, he told the board, were from a man “sensitive and attuned to, and interested in, the health, well-being and development of a woman’s body, whether the woman is experiencing puberty, childbirth or lactation.”
The board member decided that termination was excessive and said only a five-day suspension was warranted. Because both the man and WestJet agreed reinstatement was not appropriate, the board said the company should pay financial restitution instead.
A panel of three judges at the Federal Court of Appeal overturned that decision.
“The board’s determination that the respondent had not engaged in sexual harassment is unreasonable,” the court said in a written decision.
“The Board’s conclusion that the respondent’s repeated comments and questioning of co-workers about their sexual development and that of their female children, as well as his comments about a co-worker’s breasts, did not amount to sexual harassment contradicts the well-established case law on sexual harassment.
“These comments and questions were sexual in nature, were made repeatedly, and the respondent knew or should have known that they were inappropriate and unwelcome. In accordance with the relevant case law, the respondent therefore sexually harassed the women to whom these comments and questions were addressed.”
The court sent the case back to the CIRB to be redetermined in accordance with the court’s findings.
• Email: ahumphreys@postmedia.com | Twitter: AD_Humphreys
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