Canada: A Haphazard Sexual Harassment Investigation – What Could Possibly Go Wrong?

Facts

Melissa Doyle, a well-educated woman who had worked with Zochem Inc. for nine years, supervised an all-male group of refinery workers. The workplace culture was dominated by the Maintenance Supervisor's "male locker room" mentality.  On his office walls were pictures of scantily clad women.  He expected Ms. Doyle to act like "one of the boys", by sharing details of her dating life, laughing at his lewd jokes and engaging in otherwise unwelcome sexual banter.  Ms. Doyle depended on his assistance and support in her role as Plant Supervisor.

In 2010, Ontario enacted Bill 168, which requires employers to develop and implement policies and procedures to curb workplace violence and harassment. Zochem engaged a third party to conduct a workplace assessment and identify any issues of concern.  During the process, Ms. Doyle disclosed the harassment.  She hoped that the new legislation would help her by improving the workplace, but without losing the Maintenance Supervisor's support or risking her job.  The third party concluded that Zochem had a culture of intimidation, bullying and verbal abuse; 40 percent of its employees were concerned about violence and harassment in the workplace.  The accompanying report made recommendations that Zochem implement sensitivity training to address acceptable and unacceptable conduct in the workplace.  There was no evidence that the recommendations were ever implemented.

After Bill 168 passed into law, Ms. Doyle confronted the Maintenance Supervisor directly. His comments stopped but, after a brief hiatus, the harassment resumed and he refused to provide her with the necessary help to do her job.  When she asked the Chief Engineer to intervene, she was belittled and insulted.  She left that meeting in tears.

At the time, both the Maintenance Supervisor and the Chief Engineer were aware that Ms. Doyle's employment was going to be terminated without cause, for alleged poor performance. Ms. Doyle, unaware of this, reported the conduct to which she was being subjected to the Assistant General Manager.  Having already drafted the termination letter to be issued to Ms. Doyle, the Assistant General Manager responded by telling her to stop being so emotional.  A cursory "investigation" was conducted into Ms. Doyle's sexual harassment complaint – the first such investigation.  The Assistant General Manager asked for a written statement from one of the two men identified, who responded by accusing Ms. Doyle of sexualized behaviour at the plant.  This accusation was never put to Ms. Doyle and she was not asked for any written statement in reply.  The Assistant General Manager reminded the two men that engaging in workplace joking could be viewed as harassment.  She then terminated Ms. Doyle's employment without telling her the outcome of the investigation.

After the termination of her employment, Ms. Doyle spiralled into a major depressive disorder with anxiety. She applied for short-term disability benefits, which were self-funded by Zochem.  The Assistant General Manager received a physician's report confirming Ms. Doyle's disability, but denied the claim after an investigation.

Ms. Doyle filed a wrongful dismissal claim and sought moral damages, aggravated damages, punitive damages, damages for the cost of future care, and damages for breach of the Ontario Human Rights Code arising from the "poisonous" work environment and the retaliatory termination following her complaint. Zochem responded by pleading "after-acquired cause".

Finding no evidence of after-acquired cause, the trial judge found that the dismissal was wrongful and awarded Ms. Doyle damages over a 10-month notice period. After finding no documented concerns regarding Ms. Doyle's performance, the judge held that the manner in which Ms. Doyle had been dismissed from employment warranted moral damages in the amount of $60,000.  The Assistant General Manager had known that Ms. Doyle suffered from clinical depression at the time of termination; her response to the sexual harassment complaint made by Ms. Doyle bordered on cruel; the self-serving investigation was patently unfair; the termination itself was "cold and brusque"; and the "take it or leave it" severance offer made to Ms. Doyle would have resulted in her giving up her rights under the Human Rights Code.

Regarding the claim for damages under the Human Rights Code, the trial judge awarded Ms. Doyle $25,000, finding that Zochem had conducted itself improperly after receiving her complaint. The judge found that Zochem had an obligation to investigate Ms. Doyle's complaint properly, and a one-day investigation conducted by an inexperienced and biased investigator was wholly unreasonable.  The Assistant General Manager did not take the third party's workplace assessment or Ms. Doyle's complaint seriously, and had singled her out for termination.  The trial judge opined that hiring an experienced and independent outside investigator would have been a wiser course of action.

Tips for Employers

Sexual harassment investigations can be extremely complex, particularly in male-dominated workplaces. This case highlights the need for independent and thorough investigations and demonstrates the liability that an employer can incur if it fails to meet its obligations in this regard.

Retaining a skilled external investigator, particularly for complex issues such as bullying, harassment or sexual harassment, or where credibility is a live issue, not only protects the employer from liability, but can greatly assist in creating a productive and thriving workplace culture where employees feel safe and respected.

Previously printed in the LexisNexis Labour Notes Newsletter.

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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Authors
Julie Menten
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22 Nov 2018, Workshop, Vancouver, Canada

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