While you’re here, you may wish to attend one of our upcoming workshops:
Basic Workplace Investigation Techniques
While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
Interviewing witnesses can be the toughest part of an investigation, and sometimes our whole case hangs on the information that we may obtain from them. In this workshop, we help to shed light on the challenges we face when interviewing witnesses and provide strategies for dealing with them.
Earlier this year, the Ontario Court of Appeal in Doyle v Zochem, 2017 ONCA 130 (“Zochem”) upheld the trial decision (2016 ONSC 3188) to award three types of damages in a wrongful dismissal and sexual harassment case.
The complainant, Melissa Doyle (“Doyle”) was a plant supervisor and health and safety coordinator. She worked for Zochem Inc. (“Zochem”) for nine years, and, was the only woman working in the plant. During her tenure at Zochem, Doyle experienced sexual harassment and bullying. A mere five days before her termination, Doyle complained to Zochem’s Assistant General Manager (“Wrench”) in hopes that the harassment would stop. According to the trial judge, Wrench conducted a “cursory” and “flawed” investigation, and followed through with the decision to terminate Doyle.
The trial judge awarded Doyle:
- A ten month reasonable notice period as damages for wrongful dismissal;
- $25,000.00 for general damages for sexual harassment under the Human Rights Code, R.S.O. 1990 (the “Code”) The judge found that Doyle’s gender and her sexual harassment complaint were likely the most significant reasons for her termination; and,
- $60,000.00 in moral damages For Zochem’s breach of its implied contractual obligation of good faith in the manner of Doyle’s termination (involving Zochem’s pre- and post-termination conduct), including the manner of handling her sexual harassment complaint and investigation.
Zochem appealed. The Appeal judge’s decision to uphold the trial decision was based on a number of factors, most notably: 1) Zochem’s handling of Doyle’s sexual harassment complaint – including the inadequacy of the investigation conducted; and, 2) Zochem’s conduct around the time of termination – including pre- and post-termination conduct.
Handling of the sexual harassment complaint and investigation
Upon receiving Doyle’s sexual harassment complaint, Wrench told Doyle that she was too sensitive, that she should be tougher, and that she should have “thicker skin”.
The day following Doyle’s complaint, Wrench cleared Doyle’s aggressor (Rogers) of the allegations and delivered to him a short letter. The letter was a warning to Rogers that he should not conduct himself in the manner complained of – but nothing more.
Wrench claimed to have conducted an “investigation”, yet according to the decision, her method was anything but unbiased, fair, or thorough. Wrench did not ask Doyle to put her complaint in writing yet asked Rogers to respond in writing. Doyle was not made aware of Rogers’ version of events; and, Doyle was never given an opportunity to respond to Rogers’ version of events nor Wrench’s findings. Given the above, it is no surprise that Wrench admitted that she did not follow any formal investigation procedures. As the trial judge pointed out “[s]he simply decided to disbelieve Doyle, and that concluded her investigation” (at para 235).
The trial judge also made note of the workplace survey and assessment that was conducted following Bill 168’s introduction in 2010. Compliance requirements prompted Zochem to hire a third party to conduct the survey and offer recommendations. Amongst the recommendations was the necessity of workplace sensitivity training, and a six month follow-up survey. Despite Wrench suggesting that the training had been conducted, there was no proof that recommendations were followed.
Zochem’s conduct surrounding Doyle’s termination
In addition to finding Zochem’s inadequate handling of Doyle’s sexual harassment complaint, both the trial and appeal judges had a significant volume of employer termination conduct to consider. Specifically,
- Zochem’s attempts to “dig up dirt” on Doyle to justify the pre-determined decision to terminate her;
- During the termination, a third-party human resources consultant told Doyle that she was irresponsible with her sexual harassment complaint because Rogers’ reputation was on the line;
- Doyle was presented with a termination letter and release, and despite the letter’s suggestion that Doyle seek legal advice, she was pressured into signing immediately;
- Immediately after termination, Doyle’s keys were taken from her purse without her consent and her car was brought around to expedite her exit;
- Doyle submitted a short term disability claim due to her diagnosed anxiety and depression (which stemmed from the toxic workplace). Her claim was wrongfully denied by Wrench without sufficient evidence justifying the denial.
- The dangers of hastily dismissing an employee’s sexual harassment complaint and conducting a cursory and haphazard investigation
Taking sexual harassment complaints seriously, regardless of any preconceived assumptions, is imperative to ensure fairness. The Court’s decision has demonstrated that an inadequate and careless investigation will be a factor worthy of consideration in the determination of moral damages.
In this case, the Court made note of a lack of adherence to any formal investigation procedures, the absence of providing the complainant an opportunity to respond, and the investigator’s clear bias. Given her obvious bias, Wrench should have secured a neutral third-party to conduct the investigation.
Ensuring investigations are conducted in a thorough and fair manner, and by a competent investigator following proper procedure, may lessen an employer’s exposure to liability for moral damages.
Moreover, though not in force at the time of Doyle’s complaint, Bill 132 requirements should act as a guide for employers in similar circumstances. Amongst other things, Bill 132 mandates that an employer:
- shall develop and maintain a written program to implement sexual harassment policies;
- maintain measures and procedures for workers to report incidents of workplace harassment;
- outlines how incidents or complaints of workplace harassment will be investigated and dealt with – including the handling of sensitive information;
- shall ensure that an investigation is conducted into workplace incidents or complaints of harassment; and,
- shall ensure that the complainant is informed in writing of the results of the investigation and of any corrective action that has been taken.
Ensuring compliance with Bill 132 may also lessen an employer’s exposure to liability. For more information on Bill 132, watch our webcast “Bill 132: One year later”, or see our most recent Bill 132 blog.
- A sexual harassment complaint poorly handled may also result in Human Rights’ damages – despite overlapping conduct
While Zochem’s inadequate and unprofessional handling of Doyle’s sexual harassment complaint resulted in moral damages, the Court also awarded Human Rights damages for the same conduct. On appeal, the Court distinguished between each set of damages and justified these awards.
While the courts take care to avoid double-recovery, where the Court awards two heads of damages for the same conduct, damages may be upheld where their purposes differ. In this case, moral damages were awarded for the unfair and bad faith manner of dismissal (including the handling of the sexual harassment complaint and haphazard investigation); while Human Rights’ damages are remedial, not punitive, and compensate for the loss of the right to be free from discrimination.
- Pre- and post-termination conduct surrounding a wrongful termination may factor into an award for moral damages
Employers ought to be weary not only of their conduct at the time of termination, but also of their conduct surrounding termination – this includes pre- and post- termination conduct. The Court has stated that while some conduct, viewed in isolation, would not constitute bad faith, the same conduct when part of a course of conduct may constitute bad faith.
As such, employers might find value in taking a step back and assessing their conduct, and how it might be perceived as a whole.
- The Court’s consideration of an employer’s previous workplace assessment/survey and whether recommendations were followed
While not a substantial part of the Court`s decision in Zochem, previous workplace assessments and associated recommendations were indeed a point of consideration. The fact that an employer participated in an assessment or survey, yet did not implement recommendations nor conduct a follow-up review will negatively reflect on the employer. As in Zochem, such behaviour only makes the employer appear obstinate and disingenuous, and may work to strengthen a Plaintiff’s claim for damages.
For further reading on this point, please see City of Burlington v CUPE (discussed in the RT webcast linked above). In this case, the arbitrator decided that the employer’s decision to terminate the grievor, despite an investigator’s recommendation for “progressive discipline” and training only, was inappropriate and therefore reversed.
See also Cory Boyd’s blog regarding best practices for implementing workplace assessment recommendations.
Maria Luisa Vitti
Maria Luisa Vitti is Rubin Thomlinson’s first ever articling student. Maria Luisa provides support to the firm’s employment law and workplace investigation practices.