Conducting a thorough, thoughtful investigation is a critical step in any decision to terminate an employee for cause. That’s because the onus is on the employer to prove it had just cause to terminate the employment relationship without notice, something that has often been referred to as the “capital punishment” of employment law.
Carol Roe started working for Schneider in February 2001 as a truck driver. When she was hired she was informed of the company’s policy on sexual harassment, which essentially said it will not be tolerated.
Roe worked as a driver until July 2003 when she switched to the position of training engineer. She was responsible for training new drivers.
She trained between eight and 10 drivers. Training would typically consist of taking a trainee on the road with her when she was doing a run. The trips would last from one to two weeks, during which time she would teach them how to do the paperwork for border crossings, map reading, driving regulations and other related practices.
The trainees in turn completed a critique on Roe. All of the critiques were positive, but allegations of misconduct by Roe began to surface in early 2004. Catherine Shaw overheard a female driver complaining about Roe’s behaviour. A short time later Shaw was approached by another driver, Bonnie Cronkwright, who also voiced complaints about Roe’s behaviour.
Shaw and Cronkwright, who were both trained by Roe and had given her a positive critique, discussed the issue and decided to take the complaints to management.
Sexual harassment complaints
Cronkwright said Roe had spoken to her in a suggestive way of being involved in sadism and masochism. She also complained Roe was lax with respect to security issues during overnight stays in truck stops, displayed herself in various stages of nudity and swore excessively.
Shaw expressed similar complaints and alleged Roe threw things around the truck cabin when she was angry.
Roe was called to a meeting on Feb. 6, 2004. She was not told the reason for the meeting. Management was afraid of retaliation against the complainants, so when they confronted Roe they kept them anonymous. A senior company official in Green Bay raised the concerns with her via telephone at the meeting. He spoke only about generalized topics and gave Roe the chance to respond. He asked Roe if:
•she threw things around the truck;
•whether she had insisted log book entries made by the trainees matched what she wrote in her log book;
•whether she said she could destroy the career of others;
•whether she gave instructions in such a way to be intimidating;
•whether her conversations focused on sadism, masochism and domineering behaviour;
•whether she used profane language;
•whether she displayed herself in various stages of nudity; and
•whether she had invited trainees into a submissive relationship.
Roe denied any wrongdoing. After a short recess, a senior member of management present in person at the meeting read Roe a brief statement informing her that her employment was terminated by reason of her creating a hostile work environment.
At trial the company said it decided to fire Roe because her behaviour was inconsistent with the company’s public image and was a threat to the safety of other employees.
But Roe pointed out she had received only positive feedback and denied the allegations of inappropriate behaviour. She admitted discussing sadism and masochism, but only in response to a conversation about an abusive husband. With respect to the allegation of nudity she said that, because of her obesity, she was unable to sleep with clothes on. But she always slept under covers. She said she was not proud of her physique, and therefore doesn’t flaunt her body, but she said sleeping in the nude inevitably led to some exhibitions of nudity.
The court said this case came down to Shaw’s word against Roe’s. (Cronkwright, the other employee, did not testify at trial.) Justice Taliano of the Ontario Superior Court of Justice said Shaw’s evidence was insufficient to warrant dismissal for cause.
Test for just cause dismissal
In McKinley v. BC Tel, a 2001 decision, the Supreme Court of Canada established the test for just cause dismissal as a two-step process requiring proof of misconduct on a balance of probabilities and proof the misconduct amounts to gross misconduct sufficient to warrant dismissal.
“The (Supreme) Court went on to hold that there could be lesser sanctions for less serious types of misconduct, including docking an employee’s pay and several other disciplinary measures,” said Justice Taliano.
Justice Taliano pointed out that where sexual harassment issues are raised, the employer should give the accused a “meaningful opportunity” to respond to allegations of misconduct and should conduct a reasonable investigation . Justice Taliano said that while sexual harassment in any form is inappropriate, there are two categories in assessing cause for discharge: serious and mild.
“If the harassment is serious in that it interferes with the proper operations of the employer’s business, summary dismissal may be justified,” Justice Taliano said. Looking at the facts of this case, it was difficult to conclude Schneider’s business operations were affected by Roe’s conduct. “On the contrary, the written record indicates (she) was performing her training responsibilities competently. Although there were some shortcomings in her work during her tenure, they certainly were not sufficient to warrant summary dismissal.”
The court said lesser sanctions, such as a warning, suspension or demotion, could have been imposed on Roe to get her to conform her behaviour to company expectations. The facts simply didn’t support termination for just cause, the court said.
Justice Taliano pointed out that the company did have a bit of experience in dealing with sexual harassment. One of its male drivers asked a female trainee to have sex with him on a trip. When she refused, he masturbated in front of her and asked her to participate.
“As outrageous as this conduct was, (Schneider) terminated the employee with compensation, submitting that the difference between the two cases was that the male driver admitted what he did was wrong whereas the plaintiff did not,” said Justice Taliano, adding he was not persuaded by this logic.
The workers who complained compared notes before coming to management. They were allowed to voice their complaints in the presence of one another. When asked to put their complaints in writing, they were not cautioned not to speak to each other about their respective complaints and were not urged to express only their own personal experiences.
Management did not take the positive training critiques into account, nor did it question the complainants about the positive critiques they gave Roe.¬
“Armed only with untested details provided by the complainants, (Roe) was summoned to a meeting although she was never informed of the reason for the meeting,” said Justice Taliano. “Once there, she was not given the specifics of their complaints but was merely asked to respond to general topics. Only a general synopsis was recorded of the meeting and accordingly a complete record is not available as to what was actually said.”
The court pointed out that even though only generalized questions were posed to Roe in that meeting, her lack of specifics in responding were held against her.
“She was not given the names of the complainants, nor was she given specific dates on which she is alleged to have misbehaved,” said Justice Taliano. “At the end of the meeting, she was told she was being discharged because she had created a violent atmosphere.”
The court said the investigation was neither careful nor thorough. Roe was not given sufficient information to enable her to respond appropriately to the allegations. And the employer was not in a position to properly assess the gravity of her misconduct.
Good company, bad decision
It said the two management employees who conducted the investigation were honest and reliable witnesses who worked for a company with a solid reputation in the trucking industry.
“In my opinion, management tried to be as fair with (Roe) as their limited experience in this field permitted,” said Justice Taliano. “They were both inexperienced at dealing with the issues raised in this action and they also lacked the necessary training to do so.”
The court recognized a company’s management team should not be required to match the standards or practices of criminal investigators.
“However, basic fundamentals of fair play must be but were not observed and for that reason the results of the investigation are tainted,” it said.
Given Roe’s age (43) her length of service (three years) and her position as a training engineer, which she held for about seven months, the court calculated her notice period at three months for total damages of $15,788.75.
Roe was also seeking aggravated and punitive damages, but the court saw no basis to award them. It said the employer did not want to attach any more stigma to Roe than was necessary and the reasons for discharge were kept brief for that reason.
“There was nothing in (Schneider’s) behaviour that could be described as mean-spirited, there was no bad faith on the part of the (employer) nor was there any undue insensitivity on the part of the (employer),” said the court.
For more information see:
• Roe v. Schneider National Carriers Inc., 2006 CarswellOnt 105 (Ont. S.C.J.)
Sexual harassment defined
The Supreme Court of Canada has defined sexual harassment as “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment.” See Janzen v. Platy Enterprises Ltd., 1989 CarswellMan 328 (S.C.C.)