Canada: Employee In Québec Did Not Deserve The Sack (Santa's Sack)

Background

On September 25th, 2015, the Québec Labour Relations Board rendered a decision on an unjust dismissal complaint filed against a Québec-based employer (Azzaoui v Nautilus Plus, 2015 QCCRT 0490). In that decision, the complainant had filed an unjust dismissal complaint pursuant to Section 124 of An Act Respecting Labour Standards. It is noteworthy that the complaint was filed on October 1st 2012, and the judgment was rendered some three (3) years later.

The complainant had been a leading personal trainer at one of the employer's gyms. The complainant's dismissal resulted from two (2) complaints filed by customers, who alleged that the complainant had engaged in various forms of sexually suggestive misconduct.

Dismissal Overturned

The Board concluded that the employer did not have a good and sufficient reason for putting an end to the complainant's employment. It therefore granted the complaint, overturned the dismissal and reserved its jurisdiction to award an appropriate remedy which, under the aforementioned Act, could include, in particular, reinstatement, payment of lost wages or termination pay.

The Board's analysis of the employer's actions revealed the following:

  1. The first complaint involved allegations that the complainant had brought a customer into a private office and had engaged in inappropriate physical contact with her. The complainant had denied the allegation, maintained that the contact was not sexual in nature and stated that he ceased the contact when he sensed the customer's change of attitude.
  2. The employer reminded the complainant that there was a Code of Ethics and Harassment Policy that applied to all employees. However, no formal action was taken against the complainant and he was not advised in writing whether the employer considered the allegations to be true.
  3. The Board ruled that the investigation carried out by the employer was insufficient and did not appropriately warn the employee that he had engaged in misconduct, that there was a zero tolerance policy for sexual harassment and that any further violation of the policy would lead to the termination of his employment.
  4. A second complaint was eventually made by a different customer, this time alleging that the complainant had made sexually suggestive remarks during a training session and engaged in inappropriate physical contact during stretching exercises.
  5. Immediately upon being advised of the complaint, the employer met with the second customer to investigate. The employer prepared a termination letter and informed the complainant of his dismissal. The employer did not provide the complainant with the opportunity to explain his version of events or respond to the allegations made by the second customer.
  6. The employer justified the dismissal on the basis that the complainant was warned that any further misconduct of that nature would lead to the termination of the employment relationship. On this point, the employer's position was made more complicated by the fact that it had to prove that the complainant had been warned that automatic dismissal would result (instead of another form of discipline, such as a suspension, for example).

Lessons to be Learned

This case could have likely resulted in a different outcome, had certain basic steps been followed, including the following:

  • When made aware of allegations against an employee, an employer may choose to place an employee on an administrative suspension in order to investigate the alleged misconduct. Doing so allows the employer to take the necessary time to gather all relevant information, meet with any interested parties (including any witnesses) and demonstrate that it took the matter seriously and deliberated on the outcome of its investigation.
  • Carefully evaluate the credibility of any witnesses. In this case, the Board ruled that the allegations against the complainant were not immediately reported to the employer. The Board also ruled that Facebook postings between the complainant and the second customer appeared to contradict the allegations being made against the complainant. In addition, the Board noted that the employer had not produced the entire transcript of what was posted on Facebook.
  • Carefully identify what conclusions were reached and always make sure the employer's position is communicated in writing. Mention any applicable policies or procedures that were violated. Be unequivocal about what consequences will result in the event of future misconduct.
  • When being made aware of allegations of misconduct, timeliness is key. In this case, the Board commented on the employer's lack of timely note-keeping and its difficulty in establishing specific dates on which certain events happened. We suggest that any investigation being commenced be clearly documented and that one person be assigned the responsibility for document retention and managing the investigation.
  • Finally, it is crucial that any employee facing allegations of misconduct have the opportunity to respond and provide their version of events. Doing so will allow the employer to demonstrate that it has heard all of the relevant evidence and has made an informed decision. Keep in mind that an employee who conceals their actions, who is dishonest or who refuses to cooperate with the investigation, may actually provide the employer with further cause for terminating the employment relationship.

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