Employers who have employees working off site, providing services to clients on a regular basis, should take note of the case of Hermann Cebert v. Groupe d'imprimerie Saint-Joseph Inc.1
Saint-Joseph provided printing, photocopying and other services to a third party client. Certain employees of Saint-Joseph, including the plaintiff, worked at the premises of the client to provide the contracted services, along with the client's own employees.
The plaintiff, who had a supervisory role over Saint-Joseph's other employees working at the client location was physically attacked in the mailroom of the client by a colleague. Although, prior to the attack, there had been some discussions of the assignment of the attacker, there was no apparent reason for the attack and the accompanying physical violence. The incident was witnessed by several employees. The president of the client intervened and "fired" the plaintiff, telling him to leave the premises immediately. The plaintiff called his supervisor immediately to report what had happened and to ensure that the client continued to receive services, despite his being forced to leave. Saint-Joseph investigated, and while concluding that the plaintiff was not at fault, made no effort to facilitate his return to work. In fact, the plaintiff was terminated by Saint-Joseph who stated that the decision was due to the events surrounding the fight on the client's premises.
The plaintiff filed two complaints, one for psychological harassment and another under section 122 of the Act respecting labour standards (the "Act"). The latter alleged that the plaintiff had been terminated due to the exercise of a right under the Act. Both complaints were allowed by the Labour Relations Commission. The Commission held that the act of violence to which the plaintiff had been subjected constituted harassment, as it resulted in a poisoned workplace for the plaintiff. More importantly, it held that the actions of the president of the client towards the plaintiff (which included the use of a racial slur), amounted to harassment. While the Commission did not blame Saint-Joseph for the actions of its client, it did take the view that Saint-Joseph had failed in its obligation to put an end to the harassment once it became aware of it. Rather than simply terminating the employee, Saint-Joseph had an obligation to actively intervene with its client to explain the situation and try to convince the client to allow the employee back on its premises. As Saint-Joseph was unable to adduce any evidence whatsoever that it had done this, it failed to meet its obligations under the Act.
Finally, the Commission held that the way the termination was carried out amounted to harassment. Rather than acknowledging that the plaintiff had been an innocent victim, Saint-Joseph fired him, alleging the incident of the fight as the cause of the termination. This was found to be vexatious behaviour, which produced a long-term harmful effect on the plaintiff who felt diminished as a result of the actions of the employer.
The moral of the story is that a Quebec employer, faced with this kind of situation, must actively intervene to right a wrong caused by a client or third party when the investigation reveals that an employee has been the victim of harassment.
Moreover, the Commission acknowledged that the plaintiff had exercised a right under the Act, such that the reprisal presumption under section 122 and following of the Act was engaged. The mere reporting of the act of harassment constituted the exercise of the right. An employee is entitled to a work environment free from harassment, and the employer must try to stop harassment if it becomes aware of same. Therefore, the plaintiff had exercised the right of claiming a harassment free workplace by reporting what he believed to be harassment to the employer.
To reverse the presumption that the plaintiff had been terminated for the exercise of this right, Saint-Joseph argued that the wishes of their client left them no choice, but to terminate the plaintiff. The Commission did not accept this as a defensible reason for the termination of the plaintiff.
Footnote
1. Hermann Cebert v. Groupe d'imprimerie Saint-Joseph Inc., [2009] Q.C.C.R.T. 0373.
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