Owner held responsible for sexual harassment

Manitoba businessman fired woman who complained about co-worker’s behaviour

The owner of a Manitoba-based cell phone company has been ordered to pay a former employee nearly $5,000 by a human rights tribunal after he fired her in the wake of a sexual harassment complaint she lodged against a co-worker.

Clifford Neufeld was the owner of Mobital, a now defunct company, that operated three retail outlets. Jackie D’Heilly started working for the company on April 4, 1999, at a salary of $2,000 per month.

At first her relationship with C.G., the co-worker she accused of sexually harassing her, was positive. There was a lot of banter in the store, including sexual content, and everyone participated. It was not taken too seriously and there was never an objection.

Text messaging between Mobital employees was frequent. Initially, the exchanges between C.G. and D’Heilly were “warm and familiar.” In one message, D’Heilly called him handsome and asked if he needed a hug. In another she said she missed C.G. and his smile, and wanted him to hurry back.

C.G.’s replies were similar in tone, ending with “sweet dreams … your bud” and “chow sweetie.” D’Heilly said they called each other “buds.”

D’Heilly characterized her relationship with C.G. as “like a big brother, a father figure.” She thought he was a great guy, and said their messages should be understood in that context. But things changed in May 1999 when C.G. requested a sales meeting with D’Heilly at her home.

The visit began outside in the yard with social conversation and then moved inside. C.G. sat beside her on the loveseat. She felt this was too close and she moved away. She told him she was tired and that he should leave. At the door, C.G. turned, grabbed her, put his hands on her buttocks and said he wanted to make love to her, she said. She told him he had to leave and he did.

The relationship between C.G. and D’Heilly at work soured. But the crux of the case was how Neufeld handled the sexual harassment complaint.

Neufeld first got wind of a problem from a consultant. The consultant did not mention the complainant by name, but said harassment in the workplace was an issue. Neufeld launched an investigation. He spoke to all of the female staff and asked them to come forward. A few days later, D’Heilly approached him.

Unfortunately, Neufeld was about to go on a family vacation when D’Heilly confided in him. The human rights commission said he should have cancelled that trip, but the tribunal didn’t agree. It said that wasn’t a fair demand to make of a small business person, especially since he took a number of reasonable steps on an interim basis. He expressed support for D’Heilly and condemned C.G.’s behaviour. He offered counselling, which was declined, and offered to temporarily transfer her to another store, something that was also declined. He ensured C.G. and D’Heilly would not be alone in the store together and gave her his direct phone number.

The tribunal said that while his actions were less than perfect, they were acceptable. It said the preferred course of action would have been for Neufeld to launch a formal and professional investigation of the harassment allegation.

“But I am unable to say it was legally required,” the tribunal said. “Neufeld was clearly aware of his responsibility to safeguard (her) interests in the interim period and he did take steps.”

Once back from his trip, Neufeld began to deal with the problem but focused on forensic analysis and delayed confronting C.G. The tribunal said this was a “serious failing.”

When he uncovered the friendly, flirtatious text messages between D’Heilly and C.G., he was perplexed about her behaviour. He began to think the problem between D’Heilly and C.G. was sales related. D’Heilly wasn’t on commission, but C.G. was and he would take any sales she was responsible for and enter them as his own.

Neufeld thought D’Heilly’s objection to this practice might explain C.G.’s hostility towards her, but he was continuing his investigation. On June 22 at noon, D’Heilly sent him a text message stating she couldn’t go on under the current circumstances. Neufeld responded and reiterated his support and asked for more time.

D’Heilly pressed the issue and said she couldn’t wait any longer. Neufeld said she threatened to file a sexual harassment complaint, and got angry when he said he needed to look at it from a number of different perspectives.

At this point, Neufeld decided to confront C.G. He said C.G. broke down, was contrite and said he had been set up and it was his own fault. C.G. maintained his innocence, but admitted he had acted stupidly in going to her house, Neufeld said.

Neufeld went home to contemplate his next step. He considered D’Heilly’s actions — he thought she had technically quit her job by saying she would not be coming back to work and her conduct earlier in the day had been insubordinate. He made a chart comparing C.G. and D’Heilly, noting the pluses and minuses for each.

He took into account D’Heilly’s unwillingness to work, her lack of co-operation in dealing with the harassment complaint, her past record including improper dress and lateness, her brief length of service, her sales and her threats toward him.

He met with her the following morning and terminated her employment. The tribunal said Neufeld lost focus on the fact this was a sexual harassment complaint. Employers are bound to take this issue seriously, and must act with alacrity once they receive a complaint.

Neufeld came to the conclusion he must choose between D’Heilly and C.G. That decision was ill-advised, the tribunal said. It could appreciate the fact he had only about five working days to deal with the issue before D’Heilly forced his hand, but he ought to have moved rapidly and decisively upon his return.

“At a minimum, it was time to read the riot act to C.G. and order him to cease any mistreatment and advances,” the tribunal said. “Actual culpability could have been sorted out.”

The tribunal said there was no doubt D’Heilly was terminated primarily because she advanced a complaint of harassment. It said D’Heilly may have been guilty of showing up late for work and dressing inappropriately, but none of that was documented at the time she was fired. Neufeld’s notion that she had already quit was unreasonable and unfounded, it said.

“He ought to have seen these comments by (her) as a sign of her stress over workplace problems, a cry for help,” the tribunal said.

“In reality, he was discharging (her) because she insisted on action and was prepared to file a formal complaint with a human rights commission or a court,” the tribunal said. “In his testimony, Neufeld was forthright in saying that he took this as a threat and decided that he would not allow (her) to tell him how to run his business. Such candour is rare among witnesses and may be related to the fact that (he) appeared without legal representation. Nevertheless, dismissal of an employee because she is pursuing legal rights under the code is simply unacceptable.”

The tribunal awarded lost wages in the amount of $3,250. It awarded additional damages of $1,500.



Tribunal calls for legislative changes

The man accused of harassment, C.G., did not appear at the hearing, nor was he named as a defendant. Manitoba’s Human Rights Code permits the naming of a defendant other than the perpetrator.

The tribunal said it was understandable that C.G. was not called as a witness by either party. He would have been hostile to D’Heilly. Mobital was no longer in business, and there was ongoing litigation between Neufeld and C.G.

Thus Neufeld was not prepared to present C.G. as a witness, despite needing his evidence for some aspects of the defence in this case. The tribunal said this was not a satisfactory state of affairs.

“If C.G. committed acts of harassment as alleged, the code should have allowed for him to be named and relief should have been available against him in addition to Neufeld/Mobital,” it said. “Beyond that, C.G. should have had some opportunity to defend his reputation, whether as a witness or a party. I urge the (government) to consider a legislative amendment which clarifies these issues for the benefit of parties in the future.”

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