Stuart presents "The Ghomeshi Scenario: Responding to allegations of harassment in the workplace" at HRPA North Bay.

1. HRPA North Bay Chapter
January 13, 2017
Presented by
Stuart E. Rudner
THE GHOMESHI
SCENARIO:
RESPONDING TO HARASSMENT IN
THE WORKPLACE

2. OVERVIEW
1. Risks of a Flawed Investigation
2. The Duty to Investigate
1. Bill 132
3. Responding to Allegations
4. The Investigation Process
5. Preparing a Report
6. Designing and Implementing Policies
7. Dismissal and Consequential Action
2

3. POLL TIME!
3
www.kahoot.it

4.  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

5. 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”
5

6. Legal Risks
 Legal liability
– Wrongful dismissal
– Punitive damages
– Moral damages
– Infliction of emotional distress
 Amounts are increasing
6

7. 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

8.  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
8

9. 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
9

10.  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
10

11.  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
11

12. Increasing Risks
Recent 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
12

13. 13
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

14. POLL TIME
(Part 2)
14
www.kahoot.it

15. 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
15

16. NEW EMPLOYER
DUTIES
16
C
R
I
T
I
C
A
L
reate Written Policy
etain Records
nvestigate Harassment Complaints
rain Employees
dentify what is/is not harassment
ommunicate findings
lert Workplace
ive your Policy

17. “Workplace Harassment” means:
a) Engaging in course of vexatious comment
or conduct against a workplace that is
known or ought reasonably to be known to
be unwelcome;
or
17
BILL 132
Workplace
Harassment

18. 18
BILL 132
Workplace Sexual
Harassment
Workplace 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

19. 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.
19

20. 20
- 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

21. 21
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

22. FAILURE TO COMPLY?
SIGNIFICANT
LIABILITY!
- MOL Inspectors at employer’s expense
- Fines up to $500,000 for corporations
- Potential lawsuits

23.  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
23
Creating a Written
Policy

24. 24
Retaining
Records
• Maintain investigation-related
documents for at least one year
• We recommend at least 2 years

25. 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

26. Design a Harassment
Policy
 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

27. Implementing Policies
A. Have a policy
B. Use clear and unambiguous language
C. Keep the policy up to date
D. Publicize the policy
E. Make employees aware of concerns
F. Ensure supervisors and managers are
aware of the policy and how to monitor
G. Monitor behaviour
H. Discipline violators

28. 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
28

29. 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
29

30. Identifying what is
Harassment
 Degrading Jokes
 Dirty Looks
 Isolation
 Patterns
 Imitating Speech
 Unwelcome flirtation
 Offering benefits for sexual favours
30

31. 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
31

32. Hallmarks of Good
Investigation
 Unbiased
 Thorough
 Timely
 Well documented
 Defensible conclusions
 Recommendations & Action items
32

33. Conducting investigation
 Internal vs external
– Seriousness of allegations
– Sensitivity of issues
– Appearance of bias
– Expertise
– Availability
– Cost
33

34. 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
34

35. Witnesses
 Consider order
 Do not promise confidentiality
– Require that they do
 Warn against interference
 No reprisals for participation
 Inquire about other witnesses
 Obtain documents
35

36. 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
36

37. Preparing a Report
 Background /
allegations
 Mandate
 Process
 Documents
 Witnesses
 Policies
 Evidence
 Conclusions
 Recommendation
37

38. Report
 Assess credibility
 Compare to evidence
 What has “air of reality”?
 Don’t cop out – reach a conclusion
 Ensure it is supportable
38

39. 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
39

40. 40
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”

41. Just Cause: What Does
the Employer Prove?
1. The alleged misconduct took place,
and
2. that the nature or degree of misconduct
warranted dismissal, bearing in mind all
relevant circumstances
Proportionality is guiding principle –
“punishment must fit the crime”
41

42. 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
42

43. Dismissal Without Cause
 Notice / Pay required
 Consider
– Employment Standards
– Common Law
– Contract
 All compensation
43

44. ESA “Notice”
44
Length of Employment Notice Required
<1 year 1 week
1 year, but less than 3 years 2 weeks
3 years, but less than 4 3 weeks
4 years, but less than 5 4 weeks
5 years, but less than 6 5 weeks
6 years, but less than 7 6 weeks
7 years, but less than 8 7 weeks
8 years or more 8 weeks (maximum ESA
notice)

45. 45
Common Law: The Length of
Notice
 Requirement: “reasonable” notice
of dismissal
 The Bardal Factors
1) Length of service
2) Age
3) Position / Character of Employment
4) Availability of Similar Employment

46. 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
46

47. 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

48. SCENARIO 1
An 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?
48

49. SCENARIO 2
Rumours 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?
49

50. SCENARIO 3
Your 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?
50

51. 51
Stuart E. Rudner
srudner@rudnermacdonald.com
York Region: 289.317.1300
Toronto: 416-640-6402
www.rudnermacdonald.com
@CanadianHRLaw
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Canadian HR Law Group and visit the Rudner MacDonald Page
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