An unusual case was recently decided in the Yukon Court of
Appeal (2013 YKCA 15). Juanita Wood, a Yukon Government employee
who was accused of sexual harassment, sued for damages for
defamation from the co-worker who had complained that she had
sexually harassed him, and the personnel officer who dealt with the
complaint. Defamation cases rarely arise in workplace harassment
Ms. Wood was an employee of the Yukon Government who was
seconded to work in a management position for Selkirk First Nation.
An employee of Selkirk First Nation who reported to Ms. Wood
complained that she had sexually harassed him on two occasions. The
personnel officer who was dealing with those allegations reported
the alleged sexual harassment to "the appropriate people"
at the Yukon Government.
The court found that while the accusations of sexual harassment
could be defamatory as the statements were "capable of
lowering the plaintiff's reputation in that community in the
estimation of other reasonable persons," in these
circumstances, the allegation of sexual harassment was protected by
qualified privilege. The employee who made the allegation did so in
the context of his employment and he made the allegation to
managers who would have an interest in receiving that information.
Ms. Wood said that the accusations were motivated by malice. If
that had been the case, the defence of qualified privilege would
not apply. The court found, however, that there was no evidence
that the employee made the allegations maliciously.
With respect to the personnel officer, the court found that her
reports of the sexual harassment complaint to the Yukon Government
were also covered by qualified privilege. She had a duty to report
the allegations and she reported to the appropriate people at the
Yukon Government. Accordingly, she was also protected from an
action for damages for defamation as there was no evidence that she
had acted maliciously.
Proper Workplace Harassment Policies are Key
This case is a useful reminder that harassment complaints in the
workplace, such as complaints of sexual harassment, should be dealt
with under proper policies. The internal communication of those
complaints should be restricted to employees or managers who are
involved in the process and are required to have information about
complaints in order to deal with them. The information should be
kept confidential and not disseminated widely.
Employees who make harassment complaints are typically warned
that these complaints are serious matters and that the employee
must be truthful in making such a complaint. Employees should also
understand that if they make a harassment complaint maliciously,
they will not be protected by qualified privilege and could be sued
for damages for defamation, in addition to any disciplinary
sanctions that the employer may apply for a malicious
Employers could be vicariously liable for damages for improper
dissemination of information after a complaint is received. In
order to have the protection of qualified privilege, the complaint
must be treated confidentially and disclosed only to those persons
in the organization who must have knowledge of the complaint in
order to deal with it. Appropriate policies for handling such
complaints make it easy for the employer to establish who has a
legitimate interest in having information about a complaint.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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