Employer handled sexual harassment complaint poorly but handled termination properly: Human Rights Tribunal
An Ontario woman was sexually harassed by her manager at work but her firing a few months later was not a reprisal for the complaint, the Ontario Human Rights Tribunal has ruled.
Marjorie Harriott was a customer service representative in Toronto at National Money Mart, a company providing payday loans and money wiring. Her job included serving customers, ensuring the branch’s money was accurately counted and keeping supplies stocked.
Soon after Harriott started working at the branch in April 2007, she started feeling uncomfortable with her branch manager, Desmond Wade. She said she caught him regularly staring at her breasts and buttocks and he did the same with co-workers and female customers. Other than exclaiming his name when she caught him doing it, she didn’t express her discomfort as she was afraid of losing her job.
Harriott said Wade also made derogatory and sexual comments about female employees and customers on a regular basis. Occasionally, he would tell sexual jokes.
Wade also made inappropriate physical contact, she said, such as standing too close, touching her shoulder, brushing against her or putting his hand over hers on the computer mouse.
In January 2008, Harriott called the HR manager to say she was experiencing sexual harassment. When she sent a letter describing Wade’s behaviour and asking for a transfer, HR scheduled a meeting with her.
The day before the meeting, Harriott went to see her doctor because she was feeling stressed and it was negatively affecting her job performance. She was suffering from panic attacks, anxiety headaches and sleeplessness. When she called to say she wouldn’t be at work, she got into an argument with Wade. She then called the district manager and said she couldn’t deal with Wade any more. The district manager told her to work it out with Wade and hung up.
At the meeting, Harriott felt the district manager didn’t believe her. She asked for contact information for Money Mart’s employee assistance program (EAP) and for a transfer. The district manager agreed to the transfer and Harriott saw a therapist through the EAP.
Harriott didn’t hear anything further about Money Mart’s investigation into her complaint until a chance meeting with the HR manager in the spring of 2008, who explained the matter was over.
Fired for poor performance
On May 15, 2008, Harriott had a performance review with a new district manager, who had been in the position for a few months. She was told she needed to improve her customer service, cash handling and sales. On June 2, she was given a “progressive discipline record” for incidents in which she didn’t keep the safe door locked and a discrepancy in her till.
If Harriott continued to breach company policy or didn’t improve, she would be further disciplined, up to and including termination, said the document. This was followed by a performance improvement plan explaining Money Mart’s expectations for her performance and possible termination if she failed to meet them.
On June 22, a customer complained about Harriott, claiming she was rude and incompetent. Though Harriott had been showing some improvement, the new district manager felt the customer complaint was serious enough to warrant termination. Harriott was fired on June 30.
Harriott filed a human rights complaint, claiming her performance was not as bad as Money Mart said and the company was looking to get rid of her as reprisal for her sexual harassment complaint. She said the situation had a lasting effect on her personal life because Money Mart didn’t resolve her complaint and then got rid of her.
Tribunal’s decision
Wade should have known his conduct towards his female staff was not welcome and inappropriate for someone in a managerial position, found the tribunal, especially since Money Mart had a sexual harassment policy that described inappropriate conduct.
“It must be borne in mind sexual harassment is usually more about abuse of power and control than actual sexuality and (Harriott) was very vulnerable to Mr. Wade’s authority and his ability to influence her job with the company,” said the tribunal.
Money Mart failed to properly address the harassment by leaving it up to Harriott to handle it, found the tribunal. The company didn’t follow through with a proper investigation or get back to her with the results. Its inaction added to the stress Harriott was already experiencing from the harassment, said the tribunal.
Although Money Mart handled the sexual harassment situation poorly, it handled Harriott’s termination properly, found the tribunal. Money Mart documented her performance issues and instituted an improvement plan to give her a chance to save her employment. However, the seriousness of the customer complaint along with other performance problems gave Money Mart just cause for dismissal. Since the new district manager hadn’t been involved in the sexual harassment complaint, the decision to terminate Harriott was based “exclusively” on her job performance, found the tribunal.
Though Harriott claimed her performance was affected by issues stemming from the harassment, she didn’t mention it to anyone since the complaint or at her performance review. As a result, the tribunal didn’t accept a link between the harassment and her performance.
Money Mart and Wade were jointly ordered to pay Harriott $22,500 for the harassment and poisoned work environment. Money Mart was also ordered to pay an additional $7,500 in damages for its failure to properly investigate the complaint and the detrimental effect it had on Harriott, amend its harassment policy and train its managerial staff on sexual harassment. However, the tribunal upheld Harriott’s termination.
For more information see:
•Marjorie Harriott and National Money Mart Company and Desmond Wade, 2010 HRTO 353 (Ont. Human Rights Trib.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a biweekly publication that looks at workplace law from a business perspective. For more information, including a special introductory offer for new subscribers, visit employmentlawtoday.com.
