#MeToo and Wrongful Dismissal.

• Author: Bowal, Peter
• Position: EMPLOYMENT LAW

Introduction

It is said that everyone has their own #MeToo story. Indeed that is exactly the message #MeToo seeks to communicate. I start this column with a story that comes to my mind in this context. This then leads to the main point of this piece: #MeToo makes for captivating human interest stories and an empowering political movement, but it is irreconcilable with civil justice under our modern employment law system.

More than twenty seven years ago, the committee that selected and hired me for my current job included a senior female tenured professor in my academic discipline. Shortly after I started the job, she shared that she was single and available. As strange as it may seem, this did not strike me as inappropriate. I considered her a casual friend who opened up a bit about her personal life.

However, she continued to remind me of her influence in hiring me and implied she could influence the length of my new employment. She pressured me to use a draft of her new book in my teaching. She exerted other subtle persuasions on my work although she had no supervisory role.

Another unsettling element of these spectacular 'fire first, ask questions later' terminations is their hasty and public nature. But when my wife gave birth to twins a year later, my colleague's spontaneous comments on my "breeder" qualities were utterly shocking. I withdrew from interacting with her, even though she could sabotage my fledgling career. I am not aware that she did seriously undermine me. My career setbacks were caused by me alone.

What if I raised my hand today and called out her name?

Warning to Employers

What plays sensationally well to the public in the news, often meets with a very different fate years later in the courtroom. It is tempting to submit to the mob rule of #MeToo, of a tweet, a news story, even a rumour to immediately terminate the employment of an employee or manager for an indiscretion alleged by one or more accusers (with unproven motives) to have occurred many years and decades ago.

While the statutory limitation periods have been lifted for civil claims involving "any misconduct of a sexual nature" as discussed in a recent column here, wrongful dismissal claims can be brought up to two years later by terminated employees. Terminated workers simply do not have a fair or reasonable opportunity to refute unsubstantiated allegations of sexual harassment from decades ago in the face of the #MeToo movement, but they have the strong...