Kraft employee boxed out by harassment

Worker received little support from management after harassment by co-workers

An Ontario court has found Kraft Canada constructively dismissed a factory employee by allowing harassment to continue unobstructed after the worker’s complaints were ignored.

The 40-year-old employee worked as a whey dryer operator at Kraft’s cheese factory in Ingleside, Ont., for 16 years beginning in 1990. In 2003, the worker was disciplined for sharing personal information about the sexual conduct of his then-supervisor’s wife with another employee. The worker had socialized with the supervisor and his wife and had a sexual encounter with them. He also knew the woman had been seeking affairs on the Internet. After the worker told his co-worker and word spread in the workplace, he had a falling out with his supervisor. He was given a written warning for contributing to a poisoned work environment.

Graphic comments from co-workers

Soon after this incident, the worker moved to another department with another supervisor. In late 2005, four of his co-workers in the new department began making vulgar and offensive comments to him. The comments usually involved graphic descriptions of sexual acts between the worker and other employees and derogatory comments about his sexual orientation. Many involved asking him if he was in a three-way relationship with his former supervisor and another employee. The worker was afraid to respond because of his previous discipline, though Kraft had a written policy prohibiting harassment and offensive jokes.

The worker complained to his new supervisor on several occasions, but the supervisor didn’t intervene. The worker claimed he was subjected to offensive comments over a six-month period and on at least one occasion his supervisor was present. The supervisor told the worker, after one of his complaints, the comments would stop if he stopped reacting to them.

After a couple of months, the coworkers began questioning the worker’s sexual orientation and making sexual jokes about him and another male employee. He complained again and his supervisor told him if he filed a complaint, he should seek a transfer to another department. The supervisor also said he was on his own and a written complaint could lead to termination.

Worker on his own after complaints

In May 2006, the worker told his supervisor he wasn’t prepared to accept the harassment. He felt he was a laughingstock and he wasn’t getting anywhere with his complaints. After he was told he was on his own, he felt isolated. On May 26, 2006, he went on sick leave. The worker was soon diagnosed with depression. He told the company nurse and his psychiatrist he had been harassed at work, but Kraft argued his condition made him exaggerate the seriousness and frequency of the comments. Kraft said there was a certain level of bantering in the factory and what he perceived

to be harassment was only goodnatured ribbing. The worker never complained to HR and his supervisor had reported the other employees were “picking on him” but had stopped. The supervisor also said he kept a log of incidents but none were recorded about any harassment.

The psychiatrist recommended the worker take a few weeks off, but the worker said he didn’t want to return to that workplace. He felt he would be harassed until he quit.

Kraft investigated some of the harassment complaints, but it didn’t speak to any of the employees he had identified as making the comments. It also didn’t interview any other employees in the department. During this time, the worker called his supervisor to meet with him to discuss his problems but it didn’t happen. The supervisor then told HR the worker had said he would leave Kraft if he could get a severance package. This led to a belief the worker may have made the harassment allegations in order to get a severance package and Kraft said it couldn’t complete its investigation without more details.

The Ontario Superior Court of Justice found the lack of support and intervention by Kraft management contributed to the worker’s depression and anxiety and caused him to leave his job. Kraft’s failure to investigate his complaints properly and turning an blind eye to the harassment created a poisoned work environment that repudiated the employment contract, said the court.

The court also found the worker’s supervisor violated the company’s antiharassment policy, which required reporting instances of harassment. In addition, Kraft didn’t properly investigate by interviewing the accused harassers or other employees, though it claimed it needed more information. As a result, the worker felt alone and unsupported, which made it difficult to face a return to that environment.

“It would be unreasonable for any employee under the circumstances to have been expected to return to work in anticipation that the employer would reject the misreporting by (the supervisor) as to what occurred and deal appropriately with the perpetrators of this harassment in a manner which permitted (the worker) to continue his employment in an environment not subjected to harassment and antagonism from fellow workers or shift leaders,” said the court.

The court ordered Kraft to pay the worker 12 months’ pay in lieu of notice, minus his earnings in a lesser-paying job he started three months after leaving Kraft, for a total of $34,034. See Disotell v. Kraft Canada Inc., 2010 CarswellOnt 5781 (Ont. S.C.J.).

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