Defamation claim over sexual harassment complaint at work: How employers can minimize liability

Legitimate harassment complaint not grounds for defamation claim: Court

A harassment complaint by one employee against another and an HR person's reporting of it to superiors was not a defamation of the accused harasser's character, the Yukon Court of Appeal has ruled.

Juanita Wood, a Yukon government employee who was accused of sexual harassment, sued for damages for defamation from the co-worker who had complained she had sexually harassed him, and the personnel officer who dealt with the complaint. Defamation cases rarely arise in workplace harassment investigations.

Wood was an employee of the Yukon Government who was seconded to a management position for Selkirk First Nation. An employee of Selkirk First Nation who reported to Wood complained that Wood had sexually harassed him on two occasions. The personnel officer who was dealing with those allegations reported the alleged sexual harassment to "the appropriate people" in the territorial government.

The court found that while the accusations of sexual harassment could be defamatory since the statements were "capable of lowering the plaintiff's reputation in that community in the estimation of other reasonable persons," in these circumstances, the allegation of sexual harassment was protected by qualified privilege. The employee who made the allegation did so in the context of his employment and he made the allegation to managers who would have an interest in receiving that information. Wood said the accusations were motivated by malice. If that had been the case, the defence of qualified privilege would not apply. The court found, however, that there was no evidence the employee made the allegations maliciously.

With respect to the personnel officer, the court found her reports of the sexual harassment complaint to the Yukon government were also covered by qualified privilege. She had a duty to report the allegations and she reported to the appropriate people in the government. Accordingly, the personnel officer was also protected from an action for damages for defamation as there was no evidence she had acted maliciously.

Proper workplace harassment policies are key

This case is a useful reminder that harassment complaints in the workplace, such as complaints of sexual harassment, should be dealt with under proper policies. The internal communication of those complaints should be restricted to employees or managers who are involved in the process and are required to have information about the complaints in order to deal with them. The information should be kept confidential and not disseminated widely.

Employees who make harassment complaints are typically warned that these complaints are serious matters and the employee must be truthful in making such a complaint. Employees should also understand that if they make a harassment complaint maliciously, they will not be protected by qualified privilege and could be sued for damages for defamation, in addition to any disciplinary sanctions that the employer may apply for a malicious complaint.

Employers could be vicariously liable for damages for improper dissemination of information after a complaint is received. In order to have the protection of qualified privilege, the complaint must be treated confidentially and disclosed only to those persons in the organization who must have knowledge of the complaint in order to deal with it. Appropriate policies for handling such complaints make it easy for the employer to establish who has a legitimate interest in having information about a complaint.

For more information see:

W. (J.) v. Van Bibber, 2013 CarswellYukon 114 (Y.T. C.A.).

Larry Page is a member of the Employment and Labour Law Group at Davis LLP in Vancouver. He can be reached at (604) 643-6362 or [email protected].

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