Ultimate SoftwareToronto HR WorkshopSeptember 20, 2015

Presented byStuart E. Rudner

Responding to Allegations of Harassment

2

OVERVIEW1. Risks of a Flawed Investigation2. The Duty to Investigate

1. Bill 132 3. Responding to Allegations 4. The Investigation Process 5. Preparing a Report 6. Designing and Implementing Policies7. Dismissal and Consequential Action

3

Risks Bad PR Legal liability

– Wrongful dismissal– Punitive damages– Moral damages– Infliction of emotional distress

Amounts are increasing

4

Headlines You Don’t Want“CBC management ignored warnings in

Jian Ghomeshi affair”“Canadian Olympic Council

president resigns over sexual harassment scandal”

“Sexual harassment lawsuit describes Fox News as a “cult” filled with

“mysogyny”“Former intern tells tales of sexual

harassment by supervisor in Parliament”

Getting it Wrong:Vernon v. British Columbia 30 year employee accused of

bullying/harassment Known as “The Little General” Offensive language, racial and other

inappropriate comments

6

Investigators:– Pre-judged– Attacked accused and those who

supported her– Misled decision-makers in report

Result– 18 months’ notice– $35k in “The Damages Formerly

Known as Wallace”– $50k punitive damages

7

Increasing RisksRecent awards for failure to respond/investigate to harassment: $30,000 in Farris v. Staubach (HRTO) $125,000 general damages in City of

Calgary v CUPE Local 38 Over $200,000 in Silveira v. Olympia

Jewellery, including aggravated, punitive, and human rights damages

8

The Importance of the Investigation

Investigate first Ensure fairness, objectivity,

thoroughness Give opportunity to respond Often, employee response is

critical factor in determining appropriate discipline

9

The Duty to Investigate Laskowska v. Marineland of Canada Inc.:

Duty to investigate incorporated into OHRC duty to provide discrimination free workplace

Morgan v. Herman Miller: damages can be awarded for failing to investigate complaints even if discrimination complaint not substantiated

Scaduto v. Insurance Search Bureau: failure to investigate only where discrimination/harassment has been complained of

AND NOW: Bill 132

10

And now…- S. 25(2)(h): increased

protection for workplace harassment

- “Workplace harassment” includes workplace sexual harassment

- Employers must have policy and procedures for harassment complaints, information collection & response

- Statutory duty to investigate

BILL 132

Sexual Violence and Harassment Action

Plan Act

11

BILL 132

Sexual Violence and Harassment Action

Plan Act

(cont’d)

• MUST investigate “incidents and complaints” of sexual harassment

• MOL/OHSA inspector can retain third party investigator and obtain report at employer’s expense

12

BILL 132Workplace sexual

harassment(a) engaging in course of vexatious comment or conduct

against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or

(b) making a sexual solicitation or advance where the person making the advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows/ought reasonably to know that the [gesture] is unwelcome

13

Measures/procedures for incident reports to person other than supervisor and employer where that is the alleged harassor

Set out how incidents/complaints will be investigated/dealt with

Set out how information obtained will be kept confidential unless disclosure is necessary for the investigation, taking corrective actions, or law

Review processes ANNUALLY

BILL 132Policies Must Have:

14

POLL TIME! www.kahoot.it

15

Responding to allegations Do not ignore Act expeditiously Check policy

– Requirements for investigation / timing / people involved Review policy now to ensure not overly

restrictive Consider other obligations

– Union– Joint Health & Safety Committee

16

Responding to allegations

Communications with– Respondent– complainant

Be mindful of both parties– Ensure safe work environment– Consider referral to EAP– Interim suspension / transfer?

Do not promise lack of repercussion

17

Hallmarks of Good Investigation

Unbiased Thorough Timely Well documented Defensible conclusions Recommendations & Action items

18

Conducting investigation Internal vs external

– Seriousness of allegations– Sensitivity of issues– Appearance of bias– Expertise– Availability– Cost

19

Conducting investigation Obtain all necessary information

from complainant Do not begin with a conclusion or

investigate for purpose of proving misconduct

Do not make promises of confidentiality you cannot keep– But promise reasonable efforts

20

Witnesses Consider order Do not promise confidentiality

– Require that they do Warn against interference No reprisals for participation Inquire about other witnesses Obtain documents

21

Witnesses Provide respondent meaningful

opportunity to respond to allegations

Follow up if there is new information (can interview same person twice)–confront

Return to complainant with new information, contradictory evidence

22

Preparing a Report Background /

allegations Mandate Process Documents

Witnesses

Policies Evidence Conclusions Recommendati

on

23

Report Assess credibility

Compare to evidence What has “air of reality”?

Don’t cop out – reach a conclusion Ensure it is supportable

24

After the Report Advise complainant and respondent

of outcome Take action based upon findings

– Discipline– Mediation– Training / counselling / courses– Apology– New policies / training for others

Design a HarassmentPolicy

Collaborate with workplace health and safety committee

Bill 132 Compliant – get legal advice! Clearly outline process at all stages

(reporting, gathering information, delivering results)

Avoid “zero tolerance” language

Implementing PoliciesA. Have a policyB. Use clear and unambiguous

languageC. Keep the policy up to dateD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers

are aware of the policy and how to monitor

G. Monitor behaviourH. Discipline violators

27

Dismissals 2 types: With cause or

without cause

If with cause, no further obligation to employee

Otherwise, need to assess employee’s entitlements to

notice/pay in lieu/severance

No “near cause”

28

Just Cause: What Does the Employer

Prove?1. The alleged misconduct took place,

and2. that the nature or degree of misconduct

warranted dismissal, bearing in mind all relevant circumstances

Proportionality is guiding principle – “punishment must fit

the crime”

29

The Contextual Approach Employer must consider all

circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position– Response to allegation – Mitigating factors

Same set of facts can yield different results

30

Common Law: The Length of Notice

Requirement: “reasonable” notice of dismissal

The Bardal Factors 1) Length of service2) Age3) Position / Character of Employment4) Availability of Similar Employment

Can you package someone out instead of investigating misconduct?

Recent decision suggests employers may not be entitled to terminate without cause in order to 'side-step' the duty to investigate

Ontario Superior Court of Justice:“it is a triable issue whether the employer adopted the procedure intentionally to side step the criteria for fair treatment of an employee against whom cause is alleged”

When an employee is alleged to have engaged in misconduct, employers are expected to investigate before taking disciplinary action

Law is unclear at this point

32

Stuart E. Rudnersrudner@rudnermacdonald.com

York Region: 905-530-2484Toronto: 416-640-6402

www.rudnermacdonald.com

@CanadianHRLawConnect with me, join the

Canadian HR Law Group and visit the Rudner MacDonald Pagewww.rudnermacdonald.com/blog

www.hrreporter.com/blog/canadian-hr-law Rudner MacDonald Page

: Canadian HR Law, Rudner MacDonald PageRudner MacDonald channel