Barney Draper (Draper) has been with the Surrey location for the past fifteen years, working in the warehouse. He started as a warehouse aid and was promoted to warehouse supervisor over the years. He has no previous disciplinary record. Draper is well known for his practical jokes and sense of humour around the warehouse and tries to foster a friendly and joking environment to reduce stress at work. He maintains a vast mental catalogue of dirty jokes that he is happy to share with anyone within earshot. Draper seems to be generally well liked despite his shortcomings and is a great worker. 

The fifteen people working in the Surrey warehouse were all male until recently. A few months ago, Janine Viera (Viera) was hired. To make her feel like part of the "team," Draper started to joke around with her as he did with other warehouse employees.
It appeared that they got along well and would engage in joking and bantering with each other. Both shared an interest in working out. Draper and Viera occasionally ran into each other at the gym. According to Draper, she even once asked him to feel her biceps and touch her abs. 

Recently, Viera asked for short-term disability leave and did not explain its reasons but provided a note from a doctor indicating excessive stress would prevent her from working for the next three weeks. While waiting for paperwork to come through on the short-term disability, Viera decided to use her vacation and sick days and has not worked since the alleged "motorboat" incident. 

According to warehouse rumours, Viera's request for disability leave coincided with an incident where, allegedly, Draper pretended to "motorboat" her breasts and slapped her buttocks in front of other employees in the warehouse. 

Viera never brought her concerns to Sturgis's attention. Still, she heard additional rumours that Viera had been crying regularly in the women's bathroom for the last two weeks after Draper and other warehouse staff made jokes. 

Sturgis notes that the store has an anti-harassment policy (policy) implemented in 2015. The policy was presented to the employees only once through a PowerPoint presentation, followed by a discussion. However, neither Draper nor Viera attended the presentation, and the policy has not been updated. The policy does not specify what sexual harassment is but states that any employee who engages in conduct contrary to the policy will be subject to appropriate discipline, up to and including termination of employment. "Conduct contrary to the policy" is loosely worded: "all employees should enjoy a work environment free of personal annoyance preventing them from working." There was no mention of how to make a complaint under the policy, and Sturgis admits that MegaHurts Ltd. does not always consistently apply its policies anyway. 

Yesterday, Sturgis received a phone message from a lawyer who indicated he was representing Viera. Sturgis does not know what it is about, but now she is worried about possible legal implications if the rumours about Draper's behaviour are true. She does not think it is the store's fault; although she admits she does not know anything about an employer's obligations in this area. Additionally, Sturgis contemplated dismissing Draper to reduce costs. He earns more than others, and she believes she can get another employee to do the same job for a smaller salary. 

Additional facts about the Draper file: 

• Draper has been with the store for fifteen years, is single, and is fifty-six years old.
   
• Draper's most recent employment contract is poorly drafted and does not refer to the
  Employment Standards Act or any workplace policies.
   
• He has a Business Management diploma from BCIT.
   
• Draper's salary is $87,000 per year, and he has a lucrative health and life insurance
  benefit package.
   
• Draper supervises fourteen employees and reports directly to Sturgis.
   
• Viera is twenty-five years old, is single, and has an ungraduated degree in English.
   
• Viera has been diagnosed with post-traumatic stress disorder, and her doctors expect
  she will be off work for at least half a year. During this time, she will receive wage replacement benefits through the company's employee disability benefits plan. Sturgis is adamant she cannot afford to keep her job open for such a long period and wonders if she can terminate her—after all, she is not working!

In addition to advice about the potential legal implications of Draper's behaviour for MegaHurts, she would like advice regarding the store's policies and procedures to prevent this sort of situation in the future. 

Evaluate Sturgis's situation in the Draper/Viera file. Prepare either a draft policy that Sturgis could implement at the store addressing sexual harassment or a draft severance offer that Sturgis could provide to Draper immediately if she were to opt for terminating him on a without cause basis. 

Can you provide your analysis and recommendations based on the format below?

Analysis

Explain your answer to the issues by identifying and explaining the key legal principles, case law, collective agreement provisions (if applicable) and statutory provisions and applying them to the facts.

Recommendations

Based on your issues and analysis, provide:

• detailed recommendations, and
• one precedent reflecting your advice tailored to MegaHurts.
  The precedent will be either a:
  • policy addressing sexual harassment tailored to the MegaHurts
  • termination letter on a without-cause basis offering severance
  • termination letter for cause