Ontario employer had just cause for dismissal, but didn’t investigate harassment properly

Employer wins termination grievance, loses sexual harassment grievance

Ontario employer had just cause for dismissal, but didn’t investigate harassment properly

An Ontario employer had just cause to discharge a worker for dishonesty, but it must pay the worker $15,000 for workplace harassment and an improper investigation, an arbitrator has ruled.

“From the employer’s perspective, I can see the viewpoint that ‘The employee’s gone, we had cause to terminate for an unrelated reason, so what's the point in doing an investigation?’” says Rishi Bandhu, a labour and employment lawyer at Bandhu Professional Law in Oakville, Ont.

“However, it didn't follow its policy - they were obliged by their policy and the expectations that are in the law now to conduct an unbiased and procedurally fair investigation,” he says.

Problem with tardiness

The worker was employed as a part-time janitor for The Wexford Residence, a long-term care and seniors’ residence in Toronto.

Wexford employees swiped in when they arrived at work. In early 2020, a review of the punch-in report for 2019 showed that the worker frequently reported to work late and left early. She was issued a written disciplinary warning on Jan. 10.

One month after the written warning, the worker was late for her shift. The supervisor raised the issue of her lateness and the worker disagreed that she had been late. When the supervisor said that he was entitled to ask her about it, the worker said that she was tired of him harassing her.

A short time later, the worker met with the CEO and the supervisor. The worker said that she had arrived three minutes early and added that she would always be honest with her and there was no point in not telling the truth.

The CEO reviewed video camera footage, which depicted the worker swiping in three minutes early and then leaving. She re-entered the building 16 minutes after the start of her shift with a cup of coffee.

The CEO found two other occasions when the worker swiped in and then left the building, returning well after the start of her shift. On another day, the worker spoke to a co-worker in the lobby before reporting to her workstation 22 minutes late.

Harassment allegations raised

Later that day, the worker was called into another meeting. The CEO asked the worker to run through what she did from the time she came to work until the meeting, but the worker didn’t reveal that she had left the building.

The CEO told the worker that she knew that she had left the building after swiping in and asked if she had anything to say. The worker did not.

Just before the meeting wrapped up, the worker raised three harassment allegations against the supervisor – that he made a comment to her that he was at work more than he was having sex with his wife, he said that the worker had a “nice ass” as she walked out of his office, and he reached over to fix her collar on one occasion and touched her breast. The worker added that she wasn’t sure when exactly the incidents had happened.

After the meeting, the CEO spoke with the supervisor, who acknowledged making the wife comment to the worker and fixing her collar. He denied making the “nice ass” comment or touching her breast. He was given a written warning.

On Feb. 14, The Wexford terminated the worker’s employment and informed the worker that the supervisor had been spoken to about his behaviour. The union filed a grievance, arguing that The Wexford should have applied progressive discipline and the discharge was a reprisal for the harassment complaints.

Dishonesty goes to the heart of the employment relationship, making it serious employee misconduct, says an employment lawyer.

Sexual harassment complaint

In December, the worker filed an application for sexual harassment with the Ontario Human Rights Tribunal, providing specific dates for the incidents and adding that the supervisor had told her that he “likes Black women” in addition to the “nice ass” remark.

The arbitrator found that the worker lied about being late for work and tried to mislead the CEO by omitting that she had left the building. In addition, the accusation of the supervisor harassing her for lateness was false, as she actually was late and the supervisor had the right to raise the issue, the arbitrator said.

The arbitrator determined that the worker “knowingly engaged in a scheme to manipulate the employer’s timekeeping system.”

“There were multiple layers of dishonesty, plus the fact that this was not a one-off incident,” says Bandhu. “That trust that is so essential in the employment relationship was completely broken - I think if it was a one-off incident, discharge might have been excessive, but given that there was previous discipline and she was covering it up, that compounded the issue.”

The worker’s time theft and misrepresentation added up to “serious culpable misconduct” that breached her employer’s trust, said the arbitrator. Considering that the worker had received a written warning about the same type of misconduct, the employment relationship was irreparably damaged, the arbitrator concluded.

False expense claims justified the firing of a senior level employee, the BC Supreme Court found.

Breach of trust

The arbitrator also found that the decision to discharge was based on breach of trust, of which there was sufficient evidence. The arbitrator accepted that the CEO decided to terminate the worker’s employment during the second meeting after she told the worker she knew that she had left the building. This was before the worker made the harassment complaints, said the arbitrator in finding no reprisal.

The reprisal issue came down to timing, says Bandhu.

“The CEO had no knowledge of any [harassment] after the discussion about her lateness, so at the point at which she determined that [the worker] was being dishonest, that's when the decision crystallized in her mind to let her go, even though it had not been communicated at that point,” he says.

As for the sexual harassment allegations, the arbitrator accepted two of them but not the “nice ass” comment. The difference in the worker’s account of the incident in her human rights application and the fact that she didn’t tell the CEO about the “Black women” comment undermined her allegation, the arbitrator said.

Many organizations may think things aren’t so bad but get caught off-guard when sexual harassment happens in their workplace, says an HR lawyer.

Supervisor acknowledged collar-fixing, comment

The supervisor acknowledged trying to fix the worker’s collar and another employee also witnessed it and saw him touch her breast, supporting the worker’s version of this incident, said the arbitrator. The supervisor said that he thought he could fix her collar because they were friendly, but the worker said that it wasn’t appropriate.

The supervisor also acknowledged making the comment about spending more time at work than having sex with his wife. He characterized it as friendly bantering, but the arbitrator accepted that it made the worker uncomfortable.

The arbitrator noted that The Wexford’s harassment policy defined workplace harassment as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” Both the collar incident and the sex comment were unwelcome, but the latter was not egregious enough to constitute harassment, said the arbitrator. However, the supervisor had no right to touch the worker for any reason and the collar incident was harassment, the arbitrator said.

The arbitrator also found that The Wexford did not properly address the worker’s sexual harassment complaints. The facility’s harassment policy outlined an investigation process, but it wasn’t followed – the CEO interviewed the supervisor alone and no investigator was assigned, as outlined in the policy. No steps were taken to seek further details from the worker or witnesses, said the arbitrator.

An employee who sexually harassed a subordinate received aggravated damages because of the employer’s bad-faith conduct in the dismissal.

Damages for harassment

The arbitrator upheld the worker’s discharge but ordered The Wexford to pay the worker $10,000 in general damages for the sexual harassment and $5,000 for failing to conduct a reasonable investigation.

Bandhu finds the damages for the improper investigation a little surprising, given that the worker was no longer an employee.

“It seems more like a penalty or a fine against the employer for not following its investigation process, it doesn't really have a compensatory aspect to it,” says Bandhu.

The damages against The Wexford, despite the fact that it was successful in proving just cause, show the importance of good investigations and harassment policies, according to Bandhu.

“Always investigate appropriately - not everything needs to be farmed out to legal counsel, but there should be some form of investigation that's conducted in every circumstance involving an allegation of sexual harassment,” he says. “At a minimum, it should be done by someone who is trained, impartial, and who takes deliberate steps towards gathering evidence and then considers that evidence.”

See Wexford Residence Inc. v. Canadian Union of Public Employees and its Local 3791, 2023 CanLII 39486.

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