Missteps are easy to make - and can be costly to deal with
By Brittany Taylor
Canadian employers have an obligation to provide employees with a safe working environment, which includes providing employees with a workplace that is free from harassment and violence. We always encourage employers to take complaints of harassment or violence seriously, and respond appropriately.
The consequences for failing to do so are high; in recent years we have seen a number of cases where an employer’s failure to investigate or properly deal with complaints of harassment by employees has resulted in significant damage awards against the employer (see, for example, Boucher v. Wal-Mart Canada Corp.).
However, it goes without saying that not every harassment complaint that comes across an employer’s desk is going to be made out. To take that thought one step further, there will inevitably be cases in which an employee uses the harassment complaint and investigation process for bad faith and even malicious purposes.
Consider a situation in which an employee brings a harassment complaint against two of her co-workers. As a result of that complaint, the two co-workers are dismissed from their employment. A short time later, another employee, who happens to be a close friend of both of the co-workers, brings a harassment complaint against the first employee - the original complainant, who got his friends fired. What is the employer to do with that complaint, given the “history” between the parties?
As we have seen with Boucher and similar cases, the employer who ignores the complaint or goes into the investigation with a goal of rejecting the allegations does so at its own peril. The employee filing the harassment complaint is just as entitled as any other employee to have his complaint taken seriously and addressed in an appropriate manner. The employer or the investigator cannot prejudge the merits of the employee’s complaint based on the fact that he may have motive for seeking “pay back” against the original complainant.
Should the employer then simply disregard the circumstances of the complaint and the possibility of ulterior motives? According to arbitrator Slotnick, who was actually faced with a fact pattern similar to that described above in Burlington (City) v Canadian Union of Public Employees, Local 2723, the answer is a resounding no. In the Burlington case, the employer had proceeded with its investigation, concluded that the grievor had sexually harassed the complainant, and terminated her employment.
The arbitrator reinstated the grievor, finding that the claims of sexual harassment were not made out, and had in fact been exaggerated by the complainant. In doing so, Slotnick noted that employers have a responsibility to “guard against complaints that are made for improper ulterior motives.”
In this case, the employer had almost blindly overlooked the circumstances of the complaint and failed to acknowledge the possibility that the complainant may have been “embellishing” his story as payback against the grievor. Even though it appeared that the investigator was made aware that the complaint could be less than genuine, there was no mention or assessment of this in her report.
Employers and investigators must consider all relevant evidence before them in the course of conducting their investigation and reaching a conclusion, including evidence that may suggest that the employer’s complaint reporting process is being abused for ulterior motives. In addition, where an employer does discover that a complaint has been made in bad faith, the employer must be prepared to respond.
In this regard, employers may wish to include wording in their harassment policy which indicates that employees who use the complaint process to make allegations and complaints for malicious purposes will be subject to discipline, up to and including the termination of their employment for cause.
Of course, there is a significant difference between a complaint that is made in bad faith, for ulterior motives, and a complaint that is made honestly but not proven in the course of the investigation. Employers must take care not to impose sanctions on employees who fall into the latter category, as this could provide grounds for a complaint of reprisal (and may unintentionally dissuade other employees with legitimate complaints from coming forward).
We encourage all employers who are faced with complaints or incidents of workplace harassment to seek legal advice before jumping into the investigation process or making any decisions relating to discipline, particularly dismissal. As you can see from the above, missteps are easy to make - and can be costly to deal with.
Brittany Taylor is an associate at Rudner Law in Toronto.