Authors: William Goldbloom

Does every workplace harassment complaint need to be investigated? Can a complaint be so minor that it isn’t worth delving into? Horner v. 897469 Ontario Inc. is a recent case that illustrates the risk of overlooking a complaint, and terminating instead of investigating.

In this case – an undefended wrongful dismissal claim – the Court awarded punitive damages because the employer terminated the plaintiff without investigating her harassment complaint. A court awarding punitive damages for an employer’s failure to investigate a harassment complaint does not come as a shock to any employment lawyer. But what’s surprising about this case is that punitive damages were awarded even though the incidents of workplace harassment, as described by the plaintiff without any contradiction from an opposing party witness, were relatively minor.

Reported Incidents of Harassment

In December 2016, Ms. Horner said that a fellow employee deliberately elbowed her. When she confronted him, he denied elbowing her and told her to “take a pill.” She reported this incident to her direct supervisor.

Two days later, Ms. Horner was trying to access a drawer that was being blocked by the same employee. After asking to access it, the employee became angry and said, “Can you not wait?” She reported this to her supervisor. She then spoke to the employer/owner and explained that she needed “time away” to deal with what happened. The owner told her that she could take the next day off, which was the last day of the year, and that they would “figure this out in the new year.”  She also asked the owner if she could be laid off. The owner then asked if she would come back from her layoff if the employee who was allegedly harassing her was no longer there.  She said “yes.” That was on December 22, 2016.

The Termination

On December 28, 2016, Ms. Horner received a termination letter dated December 22, 2016. The letter said:

On December 22, 2016, you were at the retail counter and wanted access to a drawer that your fellow employee… was standing in front of.  You lost your temper and angrily ranted against… while he was serving the customer.  You have reacted in this unprofessional manner on other occasions and have been reprimanded for it.  I cannot and will not condone this type of behaviour.

The Damages

Ms. Horner successfully claimed for wrongful dismissal in a trial that lasted less than three hours. In addition to receiving 3 months’ notice ($10,000) Ms. Horner received $20,000 in Wallace damages for the manner in which she was dismissed.

The judge also awarded her $10,000 in punitive damages specifically because the employer chose to terminate Ms. Horner, rather than investigating her complaints:

[30] I am satisfied on the evidence that the plaintiff was harassed in the workplace and that the employer, rather than investigating, terminated the plaintiff.  As such, I find that the employer’s conduct was malicious, oppressive and high-handed and must be deterred.

There was no discussion of the nature of the workplace harassment committed against Ms. Horner. The judge simply found that it had occurred.

The Lesson

An obvious lesson from this case is that as an employer, it is essential that you defend legal claims made against you. Without the employer’s representation, the facts were easily established: Ms. Horner was subjected to workplace harassment and the employer failed to investigate her complaint. And the costs – $40,000 in damages – were quickly levied.

A less obvious lesson is that an employer can conduct an investigation into a complaint of workplace harassment that is quick, simple and legally-defensible.

The Occupational Health and Safety Act requires all complaints and incidents of workplace harassment to be investigated in a manner that is “appropriate in the circumstances.” This does not mean employers should have a one-size-fits-all approach. It also does not mean that every investigation should be done by an external investigator.  Rather, we believe that this standard means the investigation process should reflect the complexity and severity of the incidents detailed in the harassment complaint. In this case, a short and efficient process could have been used. The employer could have simply spoken to the other employee after hearing Ms. Horner’s complaint, interviewed any witnesses, decided what happened and then informed Ms. Horner of those findings.  It is possible that this investigation could have been done in the course of an afternoon.

While this case is a cautionary tale of how punitive damages can be imposed for failing to investigate even minor complaints of workplace harassment, it is also a helpful reminder that an “appropriate” investigation can be a modest one.

 

About the Author William Goldbloom develops and delivers training sessions that educate clients about their legal obligations in the workplace. William also conducts workplace assessments and investigations to help employers prevent, address and resolve issues related to discrimination, physical, verbal and psychological harassment, violence, poisoned environments and bullying.