Dealing with unfounded allegations of harassment or discrimination
Case serves as reminder that false allegations can lead to discipline, including summary dismissal
Jun 13, 2016
By Stuart Rudner
As we all know, workplace harassment has been front and centre in recent years, with substantial media coverage of high-profile cases such as that involving Jian Ghomeshi. As a result, individuals are more familiar with their rights, and the fact that they do not have to accept harassment or discrimination, and employers are more cognizant of the fact they cannot condone such behaviour.
That being said, it is unfortunate that along with this increased knowledge, we have seen occasional instances of abuse. Like almost anything else, the laws against harassment and discrimination were put in place to address important issues and protect those who are vulnerable. Unfortunately, there is always a small percentage of individuals who will seize upon such laws and attempt to abuse them. The same has been seen in the context of medical leaves of absence, for example.
In my practice, I have unfortunately seen several instances of false accusations of harassment and discrimination. In some, the accusations were not deliberately false, but simply based upon a misunderstanding of the meaning of harassment or discrimination. In others, employees deliberately accused supervisors of such behaviour, knowing that in the current political climate, it was quite likely they would be able to get rid of a supervisor they disliked.
It is also unfortunate organizations are often somewhat careless when they draft policies with respect to how allegations of harassment or discrimination will be addressed. Often, this is done with good intentions. Typically, organizations will draft policies that attempt to confirm that such allegations will be taken seriously and addressed promptly.
However, organizations then make the mistake of tying their hands by guaranteeing that investigations will take place within a certain time period, or by a certain person. In many cases, that will not be feasible. It is best to state that the allegations will be investigated promptly, thoroughly and fairly, without establishing specific time lines or assigning investigation to individuals that may or may not be available or appropriate.
In addition, organizations often attempt to reassure victims by stating that allegations of harassment or discrimination will never result in any form of reprisal or discipline. This is critical where complaints are made in a genuine and bona fide manner, as no one should ever find themselves out of a job, demoted, suspended, or otherwise negatively impacted after they have the courage to complain about harassment or discrimination that they have been subjected to.
That said, such wording often protects those who make false allegations, even when those false allegations were deliberately made. For example, if the policy explicitly states that an individual will not suffer any negative repercussions for filing a complaint of harassment or discrimination, then even an individual who lies and accuses someone else of harassment may be protected. As a result, we often encourage employers to modify policies in order to protect those make complaints in good faith, but not others.
An interesting case along these lines is a recent decision of arbitrator Howard Snow in Hôtel-Dieu Grace Healthcare and Canadian Union of Public Employees, Local 1132 (Draskovic–Milojevic). In that case, the employer had dismissed Ms. Draskovic–Milojevic as a result of her repeated and frivolous accusations of discrimination on the part of her manager, as well as other misconduct.
With respect to the discrimination issue, the arbitrator found that there was absolutely no basis to the allegation the grievour made over and over again. Effectively, she had applied for a new position and been unsuccessful. She then set out on a campaign of alleging discrimination.
But as the arbitrator found, “she offered no basis for (the allegations) beyond her assertion that there can be no other explanation as to why a job which she felt was hers went to another person.” As the arbitrator also found, "The union, the employer, and every person involved except the grievor, agreed that her manager, Mr. Petro, applied the collective agreement properly in awarding the job to someone other than the grievor."
There were other instances of misconduct, including one incident that could be characterized as sexual harassment. When assessing the appropriate discipline, the arbitrator considered all the relevant factors, including the grievor’s length of service, which was relatively short, and the fact that she did have a disciplinary record.
The arbitrator also considered the fact that the grievor refused to acknowledge any wrongdoing, and that the past discipline indicated that imposing further discipline was unlikely to result in a change in behavior. As a result of all relevant factors, the arbitrator concluded that summary dismissal was appropriate.
This case should serve as a reminder that false allegations of discrimination or harassment can lead to discipline, including summary dismissal, in appropriate circumstances. Employers should review policies and ensure they do not inadvertently protect those who make allegations or harassment in bad faith. While it is critical that discrimination and harassment not be allowed to continue in the workplace, it is equally important that false allegations be penalized. Otherwise, the impact of true and genuine complaints will be lost.
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Stuart Rudner is a founding partner of Rudner MacDonald LLP in Toronto. Follow him on Twitter @CanadianHRLaw
. He can be reached at email@example.com