Employer handled sexual harassment complaint poorly but firing complainant wasn’t reprisal: Tribunal
Poisoned environment or incompetence?
Sexual harassment in the workplace can be a tricky issue for employers and it’s important for them to address it promptly and fairly when they become aware of it. If an employee’s complaint isn’t properly investigated and swept under the carpet, she could have some compensation coming her way.
However, when an employee is harassed, it doesn’t affect her obligation to do a good job at work. As a recent Ontario case demonstrated, an employer can dismiss an employee for cause as long as it can prove just cause existed, even if it contributed to a poisoned work environment by not properly dealing with an earlier harassment claim by the employee.
An Ontario woman was sexually harassed by her manager at work but her firing a few months later was not a reprisal for complaining about it, the Ontario Human Rights Tribunal has ruled.
Marjorie Harriott was a customer service representative for National Money Mart, a company that provides financial services such as payday loans, money wiring and selling Mastercards. Harriot worked at a branch in Toronto. Her job included serving customers, ensuring the branch’s money was accurately counted and keeping supplies stocked. Most of the staff at the branch were female.
Manager acted inappropriately towards female staff and customers
Soon after Harriott started working at the branch in April 2007, she started feeling uncomfortable with the behaviour of her branch manager, Desmond Wade. She said she caught him regularly staring at her, looking particularly at her breasts and behind. She also noticed him doing the same with co-workers and occasionally female customers. She felt his behaviour was inappropriate but, other than exclaiming his name when she caught him doing it a few times, she didn’t express her discomfort to him as she was afraid she would lose her job.
Harriott said Wade also made derogatory and sexual comments about female employees and customers on a regular basis. Sometimes these would be insults and sometimes they would be vulgar. Occasionally he would also tell sexual jokes, which Harriott and the other employees did not appreciate.
Wade also made inappropriate physical contact with Harriott, she said, such as standing too close to her, laying a hand on her shoulder, brushing against her or putting his hand over hers on the computer mouse while assisting her or counting money. She said she drew away from him when this happened but, again, she didn’t express her discomfort. In one incident, Wade blocked the door of the vault while Harriott was inside and didn’t move when she asked him to. When she yelled at him to let her out, he stayed there for several minutes before moving aside. Harriott had to rub against him to get out.
Lack of support from management added to stress
Harriott told the manager of another branch where she occasionally worked about Wade’s behaviour and the manager advised she should speak to Money Mart’s HR department.
On Jan.7, 2008, Harriott called the region’s HR manager and told him she was experiencing sexual harassment. She then sent a letter describing Wade’s behaviour and asking for a transfer. HR scheduled a meeting with her on Jan. 24.
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 getting panic attacks, anxiety headaches and sleeplessness. When she called the branch to say she wouldn’t be at work, she got into an argument with Wade. After that, she 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 with the HR manager and district manager, Harriott felt the district manager didn’t believe her. The district manager said Harriott should have come to her first. Harriott 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 February or March 2008, in which he explained the matter was over.
Fired for poor performance
On May 15, 2008, Harriott had a performance review with the new district manager, who had been in the position for a few months, with some input from the previous one. She was told she needed to improve on her customer service, cash handling and sales. On June 2, she was given a “progressive discipline record” for an incident in which she didn’t keep the outer door of the safe locked and another involving a discrepancy in her till. The document stated if she continued to breach company policy or didn’t improve she would be further disciplined, up to and including termination. This was followed a week later with a performance improvement plan explaining Money Mart’s expectations for her performance and if she failed to meet them, termination could result.
On June 22, a customer complained to Money Mart about Harriott, claiming she was rude and incompetent when serving him. The customer described it as “one of the worst experiences I have ever had in conducting business” and said he would never return. Though Harriott had been showing some improvement in the areas highlighted in her improvement plan, the new district manager felt the customer complaint was serious enough to warrant termination and Harriott was fired on June 30.
Harriott filed a human rights complaint, claiming her performance was not as bad as Money Mart made it out to be 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.
The tribunal heard testimony from other Money Mart employees corroborating Harriott’s descriptions of Wade’s behaviour and accepted her account. It found he should have known his comments and conduct towards his female staff were not welcome and inappropriate for someone in a managerial position with mostly female staff, particularly since Money Mart had a sexual harassment policy that described inappropriate conduct. His position also made it difficult for Harriott and her co-workers to talk to him about it, said the tribunal.
“It must be borne in mind that 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.
The tribunal also found Wade’s conduct created a poisoned work environment at the branch and “an uncomfortable, unwelcome, unprofessional, sexualized atmosphere” for his employees. These factors supported a finding that Harriott was sexually harassed by Wade.
The tribunal also found Money Mart failed to properly address the harassment by not telling Wade to stop and leaving it up to Harriott to handle it. The company also 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.
However, although Money Mart handled the sexual harassment situation poorly, it handled Harriott’s termination properly, the tribunal found. Money Mart documented Harriott’s performance issues and instituted an improvement plan to give her a chance to save her employment. She was given more than a month from her May 15 review and likely would have received more time but for the customer complaint in late June. The seriousness of the complaint along with her other performance problems gave Money Mart just cause for dismissal. Since a new district manager had been in place for several months who hadn’t been involved in the sexual harassment complaint, the tribunal found the decision to terminate Harriott was based “exclusively” on her job performance.
Though Harriott claimed her performance was affected by lasting issues stemming from the harassment, she hadn’t mentioned it to anyone since the complaint nor at her performance review or termination meeting. As a result, the tribunal didn’t accept there was 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 she endured. 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 discrimination and harassment policy and train its managerial staff on sexual harassment.
For more information see:
•Marjorie Harriott and National Money Mart Company and Desmond Wade, 2010 HRTO 353 (Ont. Human Rights Trib.).
