Responding to Allegations of Harassment

HRPA North Bay ChapterJanuary 13, 2017

Presented byStuart E. Rudner

THE GHOMESHI SCENARIO:

RESPONDING TO HARASSMENT IN THE WORKPLACE

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OVERVIEW1. Risks of a Flawed Investigation2. The Duty to Investigate

1. Bill 132 3. Responding to Allegations 4. The Investigation Process 5. Preparing a Report 6. Designing and Implementing Policies7. Dismissal and Consequential Action

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POLL TIME! www.kahoot.it

28% of Canadians have experienced sexual harassment at work or in a work-related function

48% of people who have been harassed experienced 2-5 instances

25% of Canadians sexually harassed at work felt management was unresponsive and dismissive

75% of Canadians think workplace sexual harassment needs more attention

Serious and impartial investigations + appropriate action took place 40% of the time

WHAT HAPPENS IN THE WORKPLACE?

**Source: Angus Reid Institute

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Headlines You Don’t Want“CBC management ignored warnings in

Jian Ghomeshi affair”“Canadian Olympic Council

president resigns over sexual harassment scandal”

“Sexual harassment lawsuit describes Fox News as a “cult” filled with

“mysogyny”“Former intern tells tales of sexual

harassment by supervisor in Parliament”

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Legal Risks Legal liability

– Wrongful dismissal– Punitive damages– Moral damages– Infliction of emotional distress

Amounts are increasing

Getting it Wrong:Vernon v. British Columbia 30 year employee accused of

bullying/harassment Known as “The Little General” Offensive language, racial and other

inappropriate comments

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Investigators:– Pre-judged– Attacked accused and those who

supported her– Misled decision-makers in report

Result– 18 months’ notice– $35k in “The Damages Formerly

Known as Wallace”– $50k punitive damages

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Getting it Really Wrong: Boucher v. Wal-Mart

Assistant manager harassed and bullied in front of colleagues by immediate supervisor

Complains Investigation finds no harassment Also warns of consequences for

making this complaint Employee sues

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Where did they go wrong? – Failed to follow it’s own “open door

policy”: informed the supervisor of the employee’s complaint, which led to him belittling her further

– Ignored numerous incidents of public humiliation of plaintiff

– Didn’t speak to appropriate witnesses to manager’s conduct

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Where did they go wrong? – Took no steps to end harassment– Didn’t take complaints seriously – Threatened with retaliation – Refused to address complaints

about manager Jury at initial trial awards her

$1.2 million in damages – $300,000 in aggravated/punitives

on appeal

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Increasing RisksRecent awards for failure to respond/investigate to harassment: $30,000 in Farris v. Staubach (HRTO) $125,000 general damages in City of

Calgary v CUPE Local 38 Over $200,000 in Silveira v. Olympia

Jewellery, including aggravated, punitive, and human rights damages

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The Importance of the Investigation

Investigate first Ensure fairness, objectivity,

thoroughness Give opportunity to respond Often, employee response is

critical factor in determining appropriate discipline

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POLL TIME (Part 2)

www.kahoot.it

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The Duty to Investigate Laskowska v. Marineland of Canada Inc.:

Duty to investigate incorporated into OHRC duty to provide discrimination free workplace

Morgan v. Herman Miller: damages can be awarded for failing to investigate complaints even if discrimination complaint not substantiated

Scaduto v. Insurance Search Bureau: failure to investigate only where discrimination/harassment has been complained of

AND NOW: Bill 132

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NEW EMPLOYER DUTIES

CRITICAL

reate Written Policy

etain Records

nvestigate Harassment Complaints

rain Employees

dentify what is/is not harassment

ommunicate findings

lert Workplace

ive your Policy

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“Workplace Harassment” means:

a) Engaging in course of vexatious comment

or conduct against a workplace that is known or ought reasonably to be known tobe unwelcome; or

BILL 132Workplace Harassment

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BILL 132Workplace Sexual

HarassmentWorkplace sexual harassment means:

(a) engaging in course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or

(b) making a sexual solicitation or advance where the person making the advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows/ought reasonably to know that the [gesture] is unwelcome

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BUT

A reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

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- S. 25(2)(h): increased protection for workplace harassment

- “Workplace harassment” includes workplace sexual harassment

- Employers must have policy and procedures for harassment complaints, information collection & response

- Statutory duty to investigate

BILL 132

Sexual Violence and Harassment Action

Plan Act

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BILL 132

Sexual Violence and Harassment Action

Plan Act

(cont’d)

• MUST investigate “incidents and complaints” of sexual harassment

• MOL/OHSA inspector can retain third party investigator and obtain report at employer’s expense

FAILURE TO COMPLY?

SIGNIFICANT LIABILITY!

- MOL Inspectors at employer’s expense- Fines up to $500,000 for corporations - Potential lawsuits

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Measures/procedures for incident reports to person other than supervisor and employer where that is the alleged harassor

Set out how incidents/complaints will be investigated/dealt with

Set out how information obtained will be kept confidential unless disclosure is necessary for the investigation, taking corrective actions, or law

Review processes ANNUALLY

Creating a Written Policy

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Retaining Records

• Maintain investigation-related documents for at least one year

• We recommend at least 2 years

Training Employees Formal training better than general

letters/policies Make training appropriate to

duties/responsibilities of employees – E.g. more training for managers and supervisors

on responding and recognizing harassment Investigation training mandatory for anyone

conducting New employees should be trained ASAP

after joining Written: Sign off by employee

Design a HarassmentPolicy

Collaborate with workplace health and safety committee

Bill 132 Compliant – get legal advice! Clearly outline process at all stages

(reporting, gathering information, delivering results)

Avoid “zero tolerance” language

Implementing PoliciesA. Have a policyB. Use clear and unambiguous

languageC. Keep the policy up to dateD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers

are aware of the policy and how to monitor

G. Monitor behaviourH. Discipline violators

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Responding to allegations Do not ignore Act expeditiously Check policy

– Requirements for investigation / timing / people involved Review policy now to ensure not overly

restrictive Consider other obligations

– Union– Joint Health & Safety Committee

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Responding to allegations

Communications with– Respondent– complainant

Be mindful of both parties– Ensure safe work environment– Consider referral to EAP– Interim suspension / transfer?

Do not promise lack of repercussion

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Identifying what is Harassment

Degrading Jokes Dirty Looks Isolation Patterns Imitating Speech Unwelcome flirtation Offering benefits for sexual

favours

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Third Party Harassment Amalagamated Transit Union v

TTC: company liable for failing to protect employees from abusive tweets from customers – Third party commentators– Still harassment– Ignoring language or only briefly

protesting = condonation

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Hallmarks of Good Investigation

Unbiased Thorough Timely Well documented Defensible conclusions Recommendations & Action items

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Conducting investigation Internal vs external

– Seriousness of allegations– Sensitivity of issues– Appearance of bias– Expertise– Availability– Cost

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Conducting investigation Obtain all necessary information

from complainant Do not begin with a conclusion or

investigate for purpose of proving misconduct

Do not make promises of confidentiality you cannot keep– But promise reasonable efforts

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Witnesses Consider order Do not promise confidentiality

– Require that they do Warn against interference No reprisals for participation Inquire about other witnesses Obtain documents

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Witnesses Provide respondent meaningful

opportunity to respond to allegations

Follow up if there is new information (can interview same person twice)–confront

Return to complainant with new information, contradictory evidence

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Preparing a Report Background /

allegations Mandate Process Documents

Witnesses

Policies Evidence Conclusions Recommendati

on

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Report Assess credibility

Compare to evidence What has “air of reality”?

Don’t cop out – reach a conclusion Ensure it is supportable

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After the Report Advise complainant and respondent

of outcome Take action based upon findings

– Discipline– Mediation– Training / counselling / courses– Apology– New policies / training for others

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Dismissals 2 types: With cause or

without cause

If with cause, no further obligation to employee

Otherwise, need to assess employee’s entitlements to

notice/pay in lieu/severance

No “near cause”

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Just Cause: What Does the Employer

Prove?1. The alleged misconduct took place,

and2. that the nature or degree of misconduct

warranted dismissal, bearing in mind all relevant circumstances

Proportionality is guiding principle – “punishment must fit

the crime”

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The Contextual Approach Employer must consider all

circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position– Response to allegation – Mitigating factors

Same set of facts can yield different results

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Dismissal Without Cause Notice / Pay required Consider

– Employment Standards– Common Law– Contract

All compensation

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ESA “Notice”Length of Employment

Notice Required

<1 year 1 week1 year, but less than 3 years

2 weeks

3 years, but less than 4 3 weeks4 years, but less than 5 4 weeks5 years, but less than 6 5 weeks6 years, but less than 7 6 weeks7 years, but less than 8 7 weeks8 years or more 8 weeks (maximum

ESA notice)

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Common Law: The Length of Notice

Requirement: “reasonable” notice of dismissal

The Bardal Factors 1) Length of service2) Age3) Position / Character of Employment4) Availability of Similar Employment

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Common Law: Not a Guarantee

Common law notice displaceable by properly drafted contract

Contract requires consideration Termination clause enforceable

– NO ambiguity– No “drawing the circle” on

entitlements – use saving clause

Can you package someone out instead of investigating misconduct?

Recent decision suggests employers may not be entitled to terminate without cause in order to 'side-step' the duty to investigate

Ontario Superior Court of Justice:“it is a triable issue whether the employer adopted the procedure intentionally to side step the criteria for fair treatment of an employee against whom cause is alleged”

When an employee is alleged to have engaged in misconduct, employers are expected to investigate before taking disciplinary action

Law is unclear at this point

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SCENARIO 1An employee complains to Human Resources of “bullying” from her supervisor. This employee is known to have performance issues, and clients have complained about her before. What steps should you take?

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SCENARIO 2Rumours have been afloat in your office about an affair between the CEO and his secretary. You then receive an anonymous note informing you that the CEO is abusive and inappropriate, and that this person is too afraid to speak out. How should you proceed?

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SCENARIO 3Your subordinate comes to you stating that her colleague has been bullying her. That colleague is a good friend of yours with whom you regularly go out for drinks after work. What should you do?

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Stuart E. Rudnersrudner@rudnermacdonald.com

York Region: 289.317.1300Toronto: 416-640-6402

www.rudnermacdonald.com

@CanadianHRLawConnect with me, join the

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