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A costly lesson in how not to conduct a workplace harassment investigation

It seems that everywhere we look these days, sexual harassment is on the radar – whether in Hollywood, the CBC or in our own workplaces. Recent changes to Ontario’s Occupational Health and Safety Act now require investigations to be conducted by employers into all incidents or complaints of harassment. In a decision released by the Ontario Court of Appeal in October of this year, an employer received a costly lesson on ignoring claims of workplace harassment and conducting an inept harassment investigation.

Ms. Doyle was the Plant Manager and Health and Safety Coordinator at a plant of approximately 50 employees, Zochem Inc. (“Zochem”) for 9 years. She was the only woman that worked in the plant. Over the course of her employment, the court found that she had suffered sexual harassment by the Plant Maintenance Manager, Mr. Rogers. This harassment included referring to her breasts by various nicknames, he would stare at her breasts and pretend he was taking pictures of them, he would tell her that she needed to have sex more often and most crudely, referred to a piece of equipment as a tool he would use to tie her up to better “access her”. Beyond this, Mr. Rogers also displayed pictures of scantily clad women in his office. Ms. Doyle complained to a third party company hired by Zochem in 2010 to conduct an employee survey on violence and harassment. Not surprisingly, their survey pointed out a culture of bullying, verbal abuse and intimidation. It suggested Zochem implement a training plan to combat this environment. Zochem refused. Ms. Doyle also told Mr. Rogers that his behaviour was unwelcome.

In 2011, Ms. Doyle complained of several safety issues at a production meeting. In response, the Chief Engineer and Mr. Rogers “demeaned and belittled her” in front of co-workers and Ms. Doyle left the room in tears. She then turned to the Assistant General Manager and complained again of Mr. Rogers’ continuing sexual harassment of her. Unbeknownst to Ms. Doyle, a decision had already been made to terminate her before the meeting.

The Assistant General Manager conducted “an investigation” into Ms. Doyle’s complaint. The court found it utterly deficient and made the following critiques:

Ms. Doyle was terminated without cause only 5 days after the investigation. The trial judge found that Ms. Doyle’s gender and her sexual harassment complaint were likely the most significant reasons for why she was terminated.

Not only did Zochem mishandle the investigation, in the trial judge’s opinion, they also “mangled the termination process”. Examples included:

How costly was the lesson for Zochem? Ms. Doyle was awarded 10 months of reasonable notice, $60,000 in moral damages and $25,000 in human rights damages.

Zochem appealed the trial judge finding and was unsuccessful. The Court of Appeal upheld the trial judge’s finding and further awarded costs to Ms. Doyle in the amount of $40,000 “on the basis that Zochem’s conduct in pursuing this appeal was a continuation of its oppressive conduct towards Doyle”. Ouch.

What should Zochem have done differently and how can your organization avoid this liability?

First, common sense would have gone a long way here. Specifically:

Access the Court of Appeal’s decision here.

Need some assistance in how to conduct an internal investigation, train  your staff on conducting investigations or need to retain an external investigator? Click here for more information on the labour and employment team at Siskinds.

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