4 April 2019
Dangerous liaisons: Employment risks of the office romance
Can you be fired for having a relationship with your workplace subordinate?
Anyone can be fired, but there are protections in place for employees who are terminated without good reason – what is known in employment law as without “just cause”. For example, if employees are going to be fired without just cause they should be provided with advance notice of their termination, or offered pay in lieu of notice (sometimes called termination pay or severance).
Starting an office romance a can be grounds for a just cause termination in British Columbia especially when workplace romances hit the decline, leading to the proliferation of workplace issues. The cold reality is that it can be tough to maintain a collegial environment when working alongside former romantic flames.
Dillon v Melanson, 2015 SKQB 18
That said, recent cases do not suggest that a consensual relationship between a manager and subordinate is, by itself, sufficient to found a just cause termination. In Dillon v Melanson, 2015 SKQB 18, the Saskatchewan Queen’s Bench held:
“the existence of a truly consensual sexual relationship between a manager and a subordinate is not sufficient, on its own, to justify a dismissal with cause, but it is a factor that can form part of the grounds for dismissal.”
Employers have successfully terminated employees with cause when consensual office romances create tangible issues that trigger concerns. Employers are justifiably worried about whether a workplace relationship will create a conflict of interest. Roughly speaking, the tangible workplace issues resulting from the end of an office romance can be broken down into four main categories:
- failing to treat all subordinate employees fairly
- palpable discomfort or dysfunction in the office
- lying about or concealing the existence of the relationship
- breaching an employer’s explicit policy regarding inter-office relationships
Carroll v. Emco Corporation, 2006 BCSC 861 (CanLII), aff’d 2007 BCCA 186
In Carroll v. Emco Corporation, 2006 BCSC 861 (CanLII), aff’d 2007 BCCA 186, a 15-year branch manager of a plumbing supplier began a three-year affair with one of his subordinates. Despite the relationship, the manager conducted his subordinate’s performance reviews, gave her raises, and promoted her. He was also responsible for disciplining her with respect to giving her more time off work than allowed for by company policy and for letting her come to work late without consequence. When the manager was directly confronted by his supervisors about the relationship, he lied and became evasive.
When the relationship between the manager and subordinate ended, the manager started a separate relationship with another newly hired employee. The working relationship between the initial subordinate and employee took a nosedive. Co-workers who gave evidence at trial described the branch as “not a tolerable place to work”, that “leadership is lacking – a soap opera”, and that it was like “elementary school – the two most important people in the branch aren’t working together.”
The judge found that the relationship had created a “horrific office situation” and found the manager had been terminated with just cause:
“[P]ersonal reasons that put him in conflict with the interests of his employer, deliberately and deceitfully failed to reveal his three year relationship with…his subordinate. During the continuation of that relationship, he conducted performance reviews, gave her salary increases, conducted disciplinary proceedings and promoted [the subordinate], in all of which instances he knew or ought to have known that his employer would want to know of the relationship so it could take measures to avoid the obvious conflict of interest the situation presented.”
Reichard v Kuntz Electroplating Inc, 2011 ONSC 7460
In Reichard v Kuntz Electroplating Inc, 2011 ONSC 7460, a married manager started an affair with an assistant at the company. The manager eventually had the assistant transferred to his own department and put under his immediate supervision. At some point during the relationship, the manager fathered a child with the assistant. After rumours of their relationship surfaced, the manager deliberately and continuously denied its existence to his own superior.
Two years after the relationship started, the employer introduced a “non-fraternization policy” explicitly requiring employees to notify their immediate supervisor of any workplace relationship. The policy detailed the reasons why the reporting provision was necessary (among other things, to eliminate or mitigate a potential conflict of interest and to protect employees from harassment), and that “failure to report such relationships may lead to disciplinary action, up to and including dismissal”.
After instituting the policy, the employer found conclusive evidence of the affair and fired the manger. The Ontario Supreme Court found that the manager had shown favoritism to the assistant through his ability to dictate her work, discipline her, and influence her level of compensation. The Court also found the manager wilfully and blatantly breached the employer’s non-fraternization policy over a prolonged period of time with multiple opportunities to clear up his breach. As a result, the employer had every right to distrust the employee and:
…to consider that [the employee’s] wilful misconduct seriously called into question the trust, integrity and honesty required for him to perform his duties as a manager and that [the employer’s] lack of trust in [the employee] was sufficient to terminate him for cause.
A matter of trust
The cases and issues discussed above bleed into the overarching issue of a breakdown in trust. When considering whether an employee can be terminated with cause, the courts will use the four factors outlined above to determine whether the employee has breached the employer’s trust in a significant way.
There are many other lessons to be gleaned from these cases. Employers can significantly protect their interests by drafting comprehensive policies which will ensure the workplace stays, to the largest extent possible, conflict-free. Employees can take steps to protect their employment by disclosing the existence of a consensual relationship as soon as it starts, and of course, by ensuring that no conflict of interest emerges as a result of their actions.
Love hurts, but don’t let a bad relationship get in the way of your career path. Talk to an employment lawyer about what you can do to protect yourself and your workplace.
Micah Goldberg is an Associate in the Litigation & Dispute Resolution Group and focuses a portion of his practice on employment law disputes.