Employee's complaint led to discovery that the employee was guilty of harassing behaviour herself
An Ontario worker’s flouting of her employer’s sexual harassment policies was wilful misconduct that cancelled her entitlement to severance pay, the Ontario Labour Relations Board has ruled.
Niluka Somaratna worked in the processing department of a Value Village retail store in Ontario. Her job involved sorting products that the store received from its non-profit partners, pricing it and putting it out for sale in the store.
In 2009, Value Village trained all its employees, including Somaratna, on its anti-harassment and respect in the workplace policies. However, not long after, Value Village received complaints of inappropriate behaviour at Somaratna’s store. As a result, Value Village decided to transfer a new manager to the store, one who was known to have zero tolerance for such behaviour. The manager started at the store on Feb. 1, 2010.
The new manager met with the employees of the store to inform them of the complaints and that he wouldn’t tolerate inappropriate behaviour. He also warned that any further instances of such behaviour would lead to discipline.
On April 7, 2010, Somaratna complained to the manager that she had be sexually harassed by a co-worker. Value Village launched an investigation, which revealed several incidents of sexual harassment and disrespectful behaviour that contravened its policies. It was also discovered that Somaratna had been guilty of inappropriate behaviour on two occasions: She had shown a pornographic book to co-workers and pretended to use a vibrator in front of co-workers. After the latter incident, a co-worker had felt uncomfortable and complained to the manager.
Following the investigation, Value Village terminated the employment of Somaratna and two other employees for conduct contrary to its policies, particularly since it happened shortly after the meeting which emphasized such behaviour wouldn’t be tolerated. The company felt dismissal was necessary to change the store’s environment and enforce the zero tolerance policy and, since Somaratna had engaged in the misconduct so soon after being warned, it was unlikely she would avoid such behaviour in the future. Value Village also didn’t pay any termination or severance pay to Somaratna because it felt she couldn’t be trusted to refrain from such behaviour during any period of working notice.
