Employer exacerbates employee’s harassment with bad faith dismissal

Zochem worker wins big after complaint led to firing
By Jeffrey Smith
|Canadian HR Reporter|Last Updated: 02/06/2017

An Ontario company that responded to a worker’s sexual harassment complaint by firing her must pay her 10 months’ pay plus another $85,000 in moral and human rights damages, the Ontario Superior Court of Justice has ruled.

Melissa Doyle was a plant supervisor at Zochem, a producer of zinc oxide in Brampton, Ont. The production facility required constant maintenance to ensure specifications were met and workers remained safe. All of the workers Doyle supervised were male.

She also took on the role of health and safety co-ordinator.

The work environment often took on a “locker room” mentality. In particular, maintenance supervisor Bill Rogers cultivated this environment with large photos and calendars of scantily clad women in his office.

Doyle needed ongoing co-operation with Rogers in the day-to-day operation of her group, so she had to act like “one of the boys” with him, such as laughing at his jokes, engaging in sexual banter, and acting embarrassed about his lewd comments. Because Rogers was close to the chief engineer, Doyle felt she couldn’t complain about the situation.

Other employees also made Doyle uncomfortable, and she was called names by individuals in the front office. This behaviour was particularly difficult for Doyle as she had developed clinical depression after being sexually assaulted as a teenager. She was also sexually harassed and assaulted in her previous job, which led to a legal settlement and therapy.

In 2010, Zochem retained a third-party company to do an employee survey on violence or harassment issues in the workplace so it could develop and implement policies according to Ontario’s anti-harassment and violence law, Bill 168. Doyle reported on the harassment with the hope it would solve her problems. She also confronted Rogers, who temporarily stopped making comments but then resumed the harassment. He started refusing to give her the necessary work she needed to do her job well. At a production meeting on July 14, Doyle asked the chief engineer to intervene so Rogers would help remedy safety issues. However, both Rogers and the engineer belitted her and she left the meeting in tears.

The third-party company found a culture of intimidation, bullying and verbal abuse, and a history of violence, and recommended a training plan for Zochem to meet its Bill 168 obligations. However, it didn’t follow the recommendations or implement training.

Employee terminated

Doyle reported everything to Stephanie Wrench, the assistant general manager. Wrench, who had already prepared a termination letter with the intention of firing Doyle in a few days, told Doyle to stop being so emotional.

Wrench did a cursory investigation of Doyle’s complaints and Rogers denied all of Doyle’s allegations and said it was she who often made sexually charged comments and bought the racy calendars. Rogers also said she often cried, but he considered that to be “her normal way.” He denied being aware of her depression and claimed he told Doyle she should let him know if he caused offence.

Wrench sent Rogers a short letter to warn him against engaging in workplace chat or joking that could be construed as harassment and to remove the calendars and other sexual paraphernalia from his office. However, she also believed the others when they downplayed the situation, and determined Doyle’s complaint didn’t have merit.

On July 19, 2011 — five days after the complaint — Wrench terminated Doyle’s employment, telling her she wasn’t needed and the company was “making a change.” Wrench mentioned there were some performance issues but Doyle hadn’t been warned of any problems since 2007, when she had been trying to get off her depression medication.

Doyle was asked to sign a final release to receive six months’ salary, and was told if she didn’t sign it, she would only receive the statutory minimum termination payment. She was given three days to consider the termination package or seek legal advice.

An HR consultant said three days wasn’t enough time, so Wrench extended the time to one week. Wrench later testified the severance payment was negotiable, but there was no evidence this was indicated to Doyle. Doyle didn’t sign the release and Zochem completed payment of the statutory minimum amount a month later.

Doyle felt “betrayed, abused and upset” and saw a psychiatrist. She was diagnosed with a major depressive disorder and anxiety that would cause difficulties with performing the duties of her job, so she applied for short-term disability (STD) and long-term disability (LTD) benefits. Zochem requested a medical report and determined Doyle’s condition was a reaction to her termination rather than exacerbation of a prior condition, so it denied her STD claim.

Doyle sued for wrongful dismissal. Zochem then claimed after-acquired cause due to abuse of authority, alleging Doyle had demanded a $10,000 loan from another employee and said her borrowing $2,000 from a contractor was “extortion.”

The court found it was clear Doyle experienced significant sexual harassment at work. She had no reason to make it up and she went through the proper channels to have it addressed. There was no dispute the workplace environment involved sexual banter and crude behaviour. It was a fact that Rogers had sexual images and items in his office and was told to get rid of them and be careful of his behaviour. In addition, the third-party assessment indicated there was a culture of harassment, abuse and intimidation.

The court also found Zochem didn’t try to fix the problem. It didn’t follow through on the recommendations that came out of the survey, and Doyle’s complaints weren’t taken seriously. Instead, Zochem decided she was the problem and terminated her employment, said the court. Though the company said there were performance issues, Doyle wasn’t told this and the real reasons were team failings and a lack of company support, said the court.

In addition, Zochem’s attempt to bring up after-acquired cause fell short in the court’s eyes. The $10,000 loan was in fact that employee’s demand for $10,000 for drapes he agreed to get for Doyle for $2,000 and she refused to pay. Zochem’s extortion allegation referred to a loan from a contractor friend who said she didn’t need to pay him back.

The court found Doyle’s 20 years of experience as a supervisor, nine years of service with Zochem, and the importance of her position made her deserving of 10 months’ notice of dismissal. The court added another $60,000 in moral damages to this, as it found Zochem’s treatment of Doyle in her dismissal — including false allegations of poor performance, demanding the release, and taking a month to pay her statutory severance pay — was in bad faith.

The court also found Doyle’s rights under Ontario’s Human Rights Code were seriously infringed when Zochem failed to deal with Doyle’s sexual harassment complaint, despite the fact she followed the proper complaint procedure and honestly tried to deal with the problem. Doyle was entitled to $25,000 in damages for breach of her human rights, said the court.

In total, Zochem was ordered to pay Doyle 10 months’ pay and pension earnings in lieu of notice, minus termination and severance pay already deducted, plus $85,000 in moral and human rights damages.

For more information see:

Doyle v. Zochem Inc.,  2016 CarswellOnt 19295 (Ont. S.C.J.).

Jeffrey R. Smith is the editor of Canadian Employment Law Today. For more information, visit www.employmentlawtoday.com.

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