responding to allegations of harassment
TRANSCRIPT
HRPA North Bay ChapterJanuary 13, 2017
Presented byStuart E. Rudner
THE GHOMESHI SCENARIO:
RESPONDING TO HARASSMENT IN THE WORKPLACE
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OVERVIEW1. Risks of a Flawed Investigation2. The Duty to Investigate
1. Bill 132 3. Responding to Allegations 4. The Investigation Process 5. Preparing a Report 6. Designing and Implementing Policies7. Dismissal and Consequential Action
28% of Canadians have experienced sexual harassment at work or in a work-related function
48% of people who have been harassed experienced 2-5 instances
25% of Canadians sexually harassed at work felt management was unresponsive and dismissive
75% of Canadians think workplace sexual harassment needs more attention
Serious and impartial investigations + appropriate action took place 40% of the time
WHAT HAPPENS IN THE WORKPLACE?
**Source: Angus Reid Institute
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Headlines You Don’t Want“CBC management ignored warnings in
Jian Ghomeshi affair”“Canadian Olympic Council
president resigns over sexual harassment scandal”
“Sexual harassment lawsuit describes Fox News as a “cult” filled with
“mysogyny”“Former intern tells tales of sexual
harassment by supervisor in Parliament”
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Legal Risks Legal liability
– Wrongful dismissal– Punitive damages– Moral damages– Infliction of emotional distress
Amounts are increasing
Getting it Wrong:Vernon v. British Columbia 30 year employee accused of
bullying/harassment Known as “The Little General” Offensive language, racial and other
inappropriate comments
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Investigators:– Pre-judged– Attacked accused and those who
supported her– Misled decision-makers in report
Result– 18 months’ notice– $35k in “The Damages Formerly
Known as Wallace”– $50k punitive damages
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Getting it Really Wrong: Boucher v. Wal-Mart
Assistant manager harassed and bullied in front of colleagues by immediate supervisor
Complains Investigation finds no harassment Also warns of consequences for
making this complaint Employee sues
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Where did they go wrong? – Failed to follow it’s own “open door
policy”: informed the supervisor of the employee’s complaint, which led to him belittling her further
– Ignored numerous incidents of public humiliation of plaintiff
– Didn’t speak to appropriate witnesses to manager’s conduct
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Where did they go wrong? – Took no steps to end harassment– Didn’t take complaints seriously – Threatened with retaliation – Refused to address complaints
about manager Jury at initial trial awards her
$1.2 million in damages – $300,000 in aggravated/punitives
on appeal
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Increasing RisksRecent awards for failure to respond/investigate to harassment: $30,000 in Farris v. Staubach (HRTO) $125,000 general damages in City of
Calgary v CUPE Local 38 Over $200,000 in Silveira v. Olympia
Jewellery, including aggravated, punitive, and human rights damages
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The Importance of the Investigation
Investigate first Ensure fairness, objectivity,
thoroughness Give opportunity to respond Often, employee response is
critical factor in determining appropriate discipline
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The Duty to Investigate Laskowska v. Marineland of Canada Inc.:
Duty to investigate incorporated into OHRC duty to provide discrimination free workplace
Morgan v. Herman Miller: damages can be awarded for failing to investigate complaints even if discrimination complaint not substantiated
Scaduto v. Insurance Search Bureau: failure to investigate only where discrimination/harassment has been complained of
AND NOW: Bill 132
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NEW EMPLOYER DUTIES
CRITICAL
reate Written Policy
etain Records
nvestigate Harassment Complaints
rain Employees
dentify what is/is not harassment
ommunicate findings
lert Workplace
ive your Policy
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“Workplace Harassment” means:
a) Engaging in course of vexatious comment
or conduct against a workplace that is known or ought reasonably to be known tobe unwelcome; or
BILL 132Workplace Harassment
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BILL 132Workplace Sexual
HarassmentWorkplace sexual harassment means:
(a) engaging in course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or
(b) making a sexual solicitation or advance where the person making the advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows/ought reasonably to know that the [gesture] is unwelcome
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BUT
A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.
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- S. 25(2)(h): increased protection for workplace harassment
- “Workplace harassment” includes workplace sexual harassment
- Employers must have policy and procedures for harassment complaints, information collection & response
- Statutory duty to investigate
BILL 132
Sexual Violence and Harassment Action
Plan Act
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BILL 132
Sexual Violence and Harassment Action
Plan Act
(cont’d)
• MUST investigate “incidents and complaints” of sexual harassment
• MOL/OHSA inspector can retain third party investigator and obtain report at employer’s expense
FAILURE TO COMPLY?
SIGNIFICANT LIABILITY!
- MOL Inspectors at employer’s expense- Fines up to $500,000 for corporations - Potential lawsuits
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Measures/procedures for incident reports to person other than supervisor and employer where that is the alleged harassor
Set out how incidents/complaints will be investigated/dealt with
Set out how information obtained will be kept confidential unless disclosure is necessary for the investigation, taking corrective actions, or law
Review processes ANNUALLY
Creating a Written Policy
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Retaining Records
• Maintain investigation-related documents for at least one year
• We recommend at least 2 years
Training Employees Formal training better than general
letters/policies Make training appropriate to
duties/responsibilities of employees – E.g. more training for managers and supervisors
on responding and recognizing harassment Investigation training mandatory for anyone
conducting New employees should be trained ASAP
after joining Written: Sign off by employee
Design a HarassmentPolicy
Collaborate with workplace health and safety committee
Bill 132 Compliant – get legal advice! Clearly outline process at all stages
(reporting, gathering information, delivering results)
Avoid “zero tolerance” language
Implementing PoliciesA. Have a policyB. Use clear and unambiguous
languageC. Keep the policy up to dateD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers
are aware of the policy and how to monitor
G. Monitor behaviourH. Discipline violators
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Responding to allegations Do not ignore Act expeditiously Check policy
– Requirements for investigation / timing / people involved Review policy now to ensure not overly
restrictive Consider other obligations
– Union– Joint Health & Safety Committee
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Responding to allegations
Communications with– Respondent– complainant
Be mindful of both parties– Ensure safe work environment– Consider referral to EAP– Interim suspension / transfer?
Do not promise lack of repercussion
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Identifying what is Harassment
Degrading Jokes Dirty Looks Isolation Patterns Imitating Speech Unwelcome flirtation Offering benefits for sexual
favours
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Third Party Harassment Amalagamated Transit Union v
TTC: company liable for failing to protect employees from abusive tweets from customers – Third party commentators– Still harassment– Ignoring language or only briefly
protesting = condonation
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Hallmarks of Good Investigation
Unbiased Thorough Timely Well documented Defensible conclusions Recommendations & Action items
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Conducting investigation Internal vs external
– Seriousness of allegations– Sensitivity of issues– Appearance of bias– Expertise– Availability– Cost
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Conducting investigation Obtain all necessary information
from complainant Do not begin with a conclusion or
investigate for purpose of proving misconduct
Do not make promises of confidentiality you cannot keep– But promise reasonable efforts
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Witnesses Consider order Do not promise confidentiality
– Require that they do Warn against interference No reprisals for participation Inquire about other witnesses Obtain documents
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Witnesses Provide respondent meaningful
opportunity to respond to allegations
Follow up if there is new information (can interview same person twice)–confront
Return to complainant with new information, contradictory evidence
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Preparing a Report Background /
allegations Mandate Process Documents
Witnesses
Policies Evidence Conclusions Recommendati
on
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Report Assess credibility
Compare to evidence What has “air of reality”?
Don’t cop out – reach a conclusion Ensure it is supportable
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After the Report Advise complainant and respondent
of outcome Take action based upon findings
– Discipline– Mediation– Training / counselling / courses– Apology– New policies / training for others
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Dismissals 2 types: With cause or
without cause
If with cause, no further obligation to employee
Otherwise, need to assess employee’s entitlements to
notice/pay in lieu/severance
No “near cause”
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Just Cause: What Does the Employer
Prove?1. The alleged misconduct took place,
and2. that the nature or degree of misconduct
warranted dismissal, bearing in mind all relevant circumstances
Proportionality is guiding principle – “punishment must fit
the crime”
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The Contextual Approach Employer must consider all
circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position– Response to allegation – Mitigating factors
Same set of facts can yield different results
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Dismissal Without Cause Notice / Pay required Consider
– Employment Standards– Common Law– Contract
All compensation
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ESA “Notice”Length of Employment
Notice Required
<1 year 1 week1 year, but less than 3 years
2 weeks
3 years, but less than 4 3 weeks4 years, but less than 5 4 weeks5 years, but less than 6 5 weeks6 years, but less than 7 6 weeks7 years, but less than 8 7 weeks8 years or more 8 weeks (maximum
ESA notice)
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Common Law: The Length of Notice
Requirement: “reasonable” notice of dismissal
The Bardal Factors 1) Length of service2) Age3) Position / Character of Employment4) Availability of Similar Employment
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Common Law: Not a Guarantee
Common law notice displaceable by properly drafted contract
Contract requires consideration Termination clause enforceable
– NO ambiguity– No “drawing the circle” on
entitlements – use saving clause
Can you package someone out instead of investigating misconduct?
Recent decision suggests employers may not be entitled to terminate without cause in order to 'side-step' the duty to investigate
Ontario Superior Court of Justice:“it is a triable issue whether the employer adopted the procedure intentionally to side step the criteria for fair treatment of an employee against whom cause is alleged”
When an employee is alleged to have engaged in misconduct, employers are expected to investigate before taking disciplinary action
Law is unclear at this point
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SCENARIO 1An employee complains to Human Resources of “bullying” from her supervisor. This employee is known to have performance issues, and clients have complained about her before. What steps should you take?
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SCENARIO 2Rumours have been afloat in your office about an affair between the CEO and his secretary. You then receive an anonymous note informing you that the CEO is abusive and inappropriate, and that this person is too afraid to speak out. How should you proceed?
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SCENARIO 3Your subordinate comes to you stating that her colleague has been bullying her. That colleague is a good friend of yours with whom you regularly go out for drinks after work. What should you do?
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Stuart E. [email protected]
York Region: 289.317.1300Toronto: 416-640-6402
www.rudnermacdonald.com
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