Keeping the bedroom out of the boardroom

Employers need to educate employees on sexual harassment policies

In the workplace, a supervisor generally has power over a subordinate, which places the subordinate in a vulnerable position. Nowhere is this kind of vulnerability more defined than in cases of harassment and, more particularly, sexual harassment.

The Supreme Court of Canada defined sexual harassment in Janzen v. Platy Enterprises Ltd. as: “Unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it.”

Human rights legislation prohibits this kind of behaviour and imposes liability on employers if it happens. Therefore, employers will be held liable for the sexually harassing conduct of employees at work. The importance of a clearly defined, well-communicated written policy on sexual harassment cannot be overstated. This is particularly so when it comes to terminating an employee for cause. The existence of a policy, and whether the employee had knowledge of it, is critical in finding the employer had just cause to terminate employment.

‘Jokester’ engineer fired

In Foerderer v. Nova Chemicals Corp., an employee was accused of sexual harassment for using profane language, sexually infused talk and jokes and displaying pornographic and graphically violent images. Although the employee acknowledged he participated in certain conduct alleged in the complaint, he characterized it as that of a “well-intentioned, misguided and misunderstood jokester.” He said he had never worked with a female power engineer before and blamed his employer, Nova, for failing to equip him with sufficient training and information about how he should conduct himself. He also claimed Nova condoned his behaviour, conducted a limited investigation and singled him out.

The Alberta Court of Queen’s Bench found the employee’s position as administrative team leader involved a certain level of trust. Nova expected employees to treat each other with dignity and respect and provided training to all employees in the areas of interpersonal skills, diversity and equity concerns and conflict resolution. The company’s history showed Nova was a proponent of diversity and equity programs and by 1999 had embarked on a campaign to recruit women in trades for jobs at the plant. It had implemented and widely published an anti-harassment policy and an Internet usage policy. The presence of clear and widely distributed policies and training provided just cause for termination.

Manager made bad atmosphere worse

In Fleming v. Ricoh Canada Inc., the employee, Gerald Fleming, replaced another national manager in an already sexually charged environment. He then elevated it to a new level with “sexually charged profanity, salacious remarks and sexual invitations.” After refusing to participate in an investigation unless counsel was present, he was terminated for cause.

In upholding the termination, the Ontario Superior Court of Justice found Fleming was aware of Ricoh’s harassment policy and had personally trained and administered the policy to new recruits. The zero-tolerance policy placed the responsibility on management to educate employees and foster “a harmonious working environment.” Upon learning of the harassment, management was to respond quickly and confidentially and set a good example. Not only did the court find Fleming had personally contributed to the sexually infused atmosphere, but he was also in breach of his duty as a manager under the policy.

Employer conducted flawed investigation

In Stone v. SDS Kerr Beavers Dental, a Division of Sybron Canada Ltd., the Ontario Superior Court of Justice found the company did not have cause to terminate the employee, Norman Stone, because it didn’t follow its own harassment policy.

Stone had an alcohol problem and regularly drank on the job. In March 2004 he was accused of sexually assaulting a co-worker. The employer’s investigator asked questions, having already concluded sexual harassment had taken place. She intentionally chose not to outline the allegations against Stone nor the particulars of what witnesses had observed, assuming he was guilty and would therefore know the details. When Stone denied he had done anything wrong and showed no remorse, she concluded termination was appropriate.

But the court found fault with the employer for failing to offer assistance to him and for the manner in which the investigation was conducted.

The court noted that during the months leading up to the events in question, Stone was increasingly abusing alcohol but no supervisors raised concerns about it with him, assisted him or initiated any form of disciplinary action. Further, the court found the investigator had already pre-judged the investigation and did not provide Stone with sufficient particulars in order for him to understand the allegations against him.

As a result, the court found there had been a lack of respect for procedural fairness and the investigation had not been impartial. Given the employer’s failure to follow its own policies, the court found the employer’s treatment of Stone at the time of dismissal amounted to bad faith. The court found there was no cause to dismiss Stone and he was entitled to extra notice.

The case law not only clarifies the importance of a well-defined, clearly written policy for sexual harassment, but equally the employees’ awareness of such a policy and the employer’s responsibility to follow it.

When considering a sexual harassment policy in the workplace, it is critical for employers to ensure employees are well-trained and well-educated on policies and procedures, and that copies of the policy are signed and acknowledged by all staff. Investigations must be conducted from a neutral perspective, and situations shouldn’t be pre-judged.

For more information see:

Janzen v. Platy Enterprises Ltd. 1989 CarswellMan 158 (S.C.C.).

Foerderer v. Nova Chemicals Corp., 2007 CarswellAlta 929 (Alta. Q.B.).

Fleming v. Ricoh Canada Inc.,, 2003 CarswellOnt 5593 (Ont. S.C.J.).

Stone v. SDS Kerr Beavers Dental, 2006 CarswellOnt 3831 (Ont. S.C.J.).

Natalie C. MacDonald is a partner with Grosman, Grosman and Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected].

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