The Ontario Superior Court of Justice has held that an employee was constructively dismissed from his employment after he endured months of harassment by his coworkers. In allowing the harassment to continue after the employee made a verbal complaint to his manager, the Court found that the employer breached its duty to the plaintiff to provide a work environment free of harassment. The plaintiff was awarded a 12 month notice period. This case reinforces the need to train members of management to identify situations of harassment and to take appropriate, timely steps in addressing such issues.
The plaintiff, Mr. Disotell, a 36 year old hourly-paid employee, claimed that he was constructively dismissed from his position at Kraft's cheese factory in Ingleside, Ontario as a result of harassment in the workplace which his employer did nothing to prevent. The harassment involved persistent derogatory sexual comments and jokes made by the plaintiff's coworkers in contravention of Kraft's harassment policy.
According to Mr. Disotell, he complained to his shift supervisor, Mr. Bougie, on three occasions about the comments being made by his coworkers. On May 26, 2006, after his third conversation with Mr. Bougie about the harassing comments, Mr. Disotell went on sick leave. While on sick leave, the plaintiff commenced this action.
The defendant claimed that it was unaware of the harassment and that the plaintiff had an obligation under Kraft's harassment policy to immediately communicate his complaint to Mr. Bougie, or to the Human Resources Department if he was unsatisfied with Mr. Bougie's response. Further, the defendant argued that Mr. Disotell was suffering from depression which caused him to exaggerate the seriousness of the comments at issue.
Much of the case turned on what Mr. Disotell did or did not disclose to Mr. Bougie. According to Mr. Bougie, the plaintiff complained to him only once and did not tell him who was picking on him or what the other employees had said. However, Mr. Bougie also testified that he reprimanded two employees as a result of the plaintiff's complaint. The Judge found that it was "illogical" that an employee like Mr. Disotell would complain to his supervisor without providing any details and that Mr. Bougie would reprimand employees even without knowing for certain what was said. There was also evidence that Mr. Bougie actually heard some of the derogatory comments and failed to report them.
After Mr. Disotell went on sick leave, Kraft did an investigation of the plaintiff's complaints; however, the company did not interview any of the employees who the plaintiff claimed were involved in making derogatory comments or the plaintiff himself. The plaintiff was not interviewed during the course of the investigation because he refused to go back to the factory where he had been working to be interviewed. Mr. Disotell did offer to meet with the representatives of human resources who were conducting the investigation at Kraft's head office to provide additional details regarding his complaint, but the company refused. The company ultimately decided that it was unable to conduct a complete investigation due to a lack of particulars and even went as far as blaming the plaintiff for this.
The unwillingness of the company to conduct a serious investigation coupled with the company's blind acceptance of Mr. Bougie's illogical statement that Mr. Disotell only once complained to him about any form of harassment resulted, according to the Court, in a breakdown of the employment relationship. According to the Court, a reasonable person could not be expected to continue his employment in Mr. Disotell's circumstances given the employer's refusal to complete a thorough investigation or offer any accommodation to the plaintiff. Since the plaintiff could not be expected to return to work, he had no reasonable alternative but to start this legal proceeding.
Kraft was found to be in breach of its duty as an employer to provide a work environment free of harassment by allowing the harassment to continue against the plaintiff. This breach constituted repudiation of the employment contract by Kraft and it was within Mr. Disotell's rights to accept the repudiation and claim constructive dismissal damages which he was determined to be entitled to.
The plaintiff was awarded a 12 month notice period. The most important factors in coming to this determination was the lower level position the plaintiff held and his age, although he did have 16 years of service with the company. After taking into consideration amounts earned in mitigation, the balance of the award came to $34,034.
This case reinforces the need to train members of management to identify situations of harassment and to take appropriate steps in addressing the issues. Where management has knowledge of the issues, the lack of formal written complaints is not a defence available to employers.
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