Written by Jennifer Costin on November 14, 2017.
It seems that everywhere we look these days, sexual harassment is on the radar – whether in Hollywood, the CBC or in our own workplaces. Recent changes to Ontario’s Occupational Health and Safety Act now require investigations to be conducted by employers into all incidents or complaints of harassment. In a decision released by the Ontario Court of Appeal in October of this year, an employer received a costly lesson on ignoring claims of workplace harassment and conducting an inept harassment investigation.
Ms. Doyle was the Plant Manager and Health and Safety Coordinator at a plant of approximately 50 employees, Zochem Inc. (“Zochem”) for 9 years. She was the only woman that worked in the plant. Over the course of her employment, the court found that she had suffered sexual harassment by the Plant Maintenance Manager, Mr. Rogers. This harassment included referring to her breasts by various nicknames, he would stare at her breasts and pretend he was taking pictures of them, he would tell her that she needed to have sex more often and most crudely, referred to a piece of equipment as a tool he would use to tie her up to better “access her”. Beyond this, Mr. Rogers also displayed pictures of scantily clad women in his office. Ms. Doyle complained to a third party company hired by Zochem in 2010 to conduct an employee survey on violence and harassment. Not surprisingly, their survey pointed out a culture of bullying, verbal abuse and intimidation. It suggested Zochem implement a training plan to combat this environment. Zochem refused. Ms. Doyle also told Mr. Rogers that his behaviour was unwelcome.
In 2011, Ms. Doyle complained of several safety issues at a production meeting. In response, the Chief Engineer and Mr. Rogers “demeaned and belittled her” in front of co-workers and Ms. Doyle left the room in tears. She then turned to the Assistant General Manager and complained again of Mr. Rogers’ continuing sexual harassment of her. Unbeknownst to Ms. Doyle, a decision had already been made to terminate her before the meeting.
The Assistant General Manager conducted “an investigation” into Ms. Doyle’s complaint. The court found it utterly deficient and made the following critiques:
- The Assistant General Manager had no experience or training in conducting workplace investigations;
- Ms. Doyle was not interviewed or given an opportunity to provide a written statement;
- The investigation took only one day;
- During Ms. Doyle’s termination meeting it was suggested to her that she was being irresponsible as Mr. Rogers’ reputation was on the line, inferring that she should abandon her claim of sexual harassment;
- The Investigator’s notes showed a clear bias against Ms. Doyle; and
- Ms. Doyle was never informed of the finding of the investigation.
Ms. Doyle was terminated without cause only 5 days after the investigation. The trial judge found that Ms. Doyle’s gender and her sexual harassment complaint were likely the most significant reasons for why she was terminated.
Not only did Zochem mishandle the investigation, in the trial judge’s opinion, they also “mangled the termination process”. Examples included:
- Alleging after the fact that it had cause to terminate Ms. Doyle’s employment by recruiting employees to “dig up dirt” to discredit her and creating poor performance reviews;
- The Investigator assured Ms. Doyle that her job was not in jeopardy, when the decision had already been made and her termination letter was being drafted;
- Encouraging Ms. Doyle to drop her claim of sexual harassment at her termination meeting;
- Having gone into her purse, without her permission, to obtain her keys to drive her vehicle to the front of the building where she was briskly escorted out; and
- Significantly delaying the payment of her minimum statutory entitlements.
How costly was the lesson for Zochem? Ms. Doyle was awarded 10 months of reasonable notice, $60,000 in moral damages and $25,000 in human rights damages.
Zochem appealed the trial judge finding and was unsuccessful. The Court of Appeal upheld the trial judge’s finding and further awarded costs to Ms. Doyle in the amount of $40,000 “on the basis that Zochem’s conduct in pursuing this appeal was a continuation of its oppressive conduct towards Doyle”. Ouch.
What should Zochem have done differently and how can your organization avoid this liability? First, common sense would have gone a long way here. Specifically:
- Act on any complaints of harassment, violence, bullying or discrimination whether made directly by a complainant or generally known. This is your obligation under the Occupational Health and Safety Act. This includes taking the complaint seriously and conducting a fulsome investigation;
- Your Investigator should be skilled in conducting workplace investigations. If your organization has doubts that it has someone skilled and unbiased, retain an external investigator. The short term cost will be worth the long term benefit;
- Ensure that you have given the Complainant and Respondent sufficient opportunity to provide their position and extend an offer to provide any further comments in writing;
- The Investigator should not pre-determine the finding or have any bias in conducting the investigation;
- Do not encourage, suggest or infer that the Complainant should drop her/his complaint or that your organization does not take it seriously;
- Spend an appropriate amount of time on the investigation, commensurate with the complexity and seriousness of the allegations;
- Report the finding of the investigation and any corrective action to be taken to the Complainant and Respondent in writing;
- Do not be deceitful. If the decision has not been made to terminate someone’s employment, do not say that it has not;
- Do not terminate someone in response to a harassment complaint or immediately following such a complaint;
- Do not access personal belongings of an employee to access their car keys; and
- Only assert cause where there are reasonable grounds to do so and otherwise provide prompt payment of a terminated employee’s minimum legislated termination entitlements.
Access the Court of Appeal’s decision here.
Need some assistance in how to conduct an internal investigation, train your staff on conducting investigations or need to retain an external investigator? Click here for more information on the labour and employment team at Siskinds.