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Treating fantasy as reality

If an employee perceives himself to be a victim of harassment or discrimination, an employer must treat it seriously – no matter how ridiculous

By Jeffrey R. Smith

How does one tell if something is real — actual evidence it exists or the perception it exists?

If someone perceives something a certain way, then isn’t it real to that person? I don’t mean to get too philosophical, but perception can be a factor when it comes to some of the responsibilities an employer has to employees to maintain a safe and healthy workplace.

Employers have an obligation to protect employees from discrimination and a poisoned work environment, but it might be a little difficult sometimes to determine when those things exist.

If an employee files a complaint or lawsuit because of her perception of things, it may come down to what the court or arbitrator determines a reasonable person would perceive. All the employer can do is ensure it takes all the steps reasonably necessary to help the employee — such as properly investigating complaints, whether the employer believes them or not.

A few months ago, the Ontario Court of Appeal struck down a lower court’s finding that a General Motors employee was the victim of racism and a poisoned work environment. (See General Motors of Canada Ltd. v. Johnson, 2013 CarswellOnt 10496 (Ont. C.A.).)

The lower court found another worker’s refusal to train with the employee was motivated by racism and GM failed to properly investigate the matter. However, the appeal court found the lower court’s decision was based mostly on the assumption the other worker was lying and GM shouldn’t have believed him.

In fact, the appeal court found no reason to find the other working was lying and the company actually investigated the matter three times at the employee’s request and came to the same conclusion. The basis for the racism complaint was secondhand hearsay and the complaining employee had not actually experienced any direct racist comments.

In this case, the employer met its obligations by taking the complaint seriously and investigating it three times. The employee may have genuinely believed there was racism and wasn’t happy with GM’s determination, but this didn’t mean the other employee was actually racist.

As it turned out, the other worker had an issue with the employee that didn’t have anything to do with race, and just because the complaining employee wasn’t happy with the outcome of the investigations, this didn’t make it a poisoned work environment, said the appeal court. As a result, when the employee went on sick leave and then refused to return after he was declared fit to work, it was he who ended the employment relationship, not the employer, as had been alleged by the employee.

Though the employee’s perception was different from reality, GM still could have gotten into legal trouble if it had ignored his complaint. Even if a complaint has no merit and seems ridiculous, employers are required to take every complaint serious.

An employee’s perception of discrimination, harassment or a poisoned work environment that is out of whack with reality has to be taken as seriously as an incident that happens in front of everyone’s eyes and is undeniable. There have been various cases where an employer has been chastised or liable for some kind of award to an employer for a failure to properly investigate, even if there was no actual harassment or discrimination.

So even if an employee’s perception may differ from reality, the employer should treat that perception as if it is reality for investigative purposes. Otherwise, the reality will be legal headaches that could have been avoided.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at Jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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