Some clients, even after scheduling an appointment, require
artful persuasion before taking necessary action against their
"But what if they won't give me a reference?," one
implored of me last week. Here was a senior financial executive
with two graduate degrees tremulous at the prospect of unspecified
retribution if he dared proceed. Yet, he had been routinely abused;
subjected to weekly tirades and marginalized in his role.
Exacerbating the indignity, he was offered an abysmal package and
was walked out of the building. His employer even scoffed when he
advised he was going to have this offer reviewed; remarking that he
would never get a better deal than the one on the table. This
employer would have done cartwheels if the client had signed this
This anecdote is telling. Regardless of education, experience or
managerial prowess, many employees believe employers hold all the
power. But as the following decision demonstrates, while an
employer may make the rules, it will be severely sanctioned if it
then ignores them.
In City of Hamilton vs. Amalgamated Transit Union, Local 107, a
female city inspector, only referred to as AB by the Court
(presumably to protect her privacy), was sexually harassed by her
direct supervisor, Mr. Richardson. Richardson made sexual comments
toward her, on one occasion calling her an "Irish skank,"
on many others, approaching her from behind and delivering
unsolicited massages and on yet others, sending her pornographic
AB complained to the City as required by its Harassment and
Discrimination directive. Despite the existence of this policy, the
City conducted a haphazard, "half-hearted" investigation
leaving AB vulnerable to Richardson's continued predations. The
City did not separate AB from Richardson while her complaint was
being investigated. Nor did it follow its own resolution procedure.
There was neither a written report of the events nor evidence that
remedial actions were taken. Essentially the City conducted a sham
investigation simply to appear to have met its obligations to its
AB filed both a human rights complaint and a grievance with her
union. At arbitration, she was awarded $25,000 for the
discrimination and harassment she had suffered. Notably, the
$25,000 was awarded precisely because the City did not properly
investigate. While the City attempted to argue that it took every
step possible to protect AB, it was abundantly clear to the
arbitrator that it never intended to take her complaint
This illustrates the need to tackle employee complaints head on.
Do not let them fester or remain unanswered and unacknowledged. All
too often, I work with employers that have received letters of
complaint from employees but failed to appropriately investigate
and speak to the employees about them to obtain remediation.
Despite what managements' personal views may be, an employer
has little defence if they choose to ignore a complaint
on the basis they view it as frivolous. An unacknowledged complaint
will lead a court to infer guilt.
The accused have rights too but those are the topic for another
The following are tips for the employer with respect to employee
Take action Contain an employee complaint by
taking swift action. Interview the parties involved; take written
statements and schedule resolution meetings.
Investigate every complaint Ask the employee
for a detailed account of the alleged incident and if there were
any witnesses or documents to support the allegations.
Create a procedure for filing complaints Follow
your own policies. Do not make them so onerous it is difficult for
you, the employer, to adhere to your own procedures. The process is
simple and can be accomplished in-house. Outside investigators are
unnecessary and almost always a waste of money although you should
speak to employment counsel, rather than guess, to guide you
Create a workplace harassment policy Courts
perceive employers more favourably when they have a harassment
policy in place that is distributed to employees and posted within
the workplace. In some provinces, this is required by law.
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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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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