Best practices for dealing with and expeditiously investigating allegations of harassment in the workplace (Presentation for HRPA York Chapter)

1. HRPA – York Region Chapter
January 27, 2015
Presented by
Stuart E. Rudner
“The Ghomeshi Scenario”:
Responding to
Allegations of Harassment

2. Headlines You Don’t Want
 CBC management ignored warnings in
Jian Ghomeshi affair
 Bungled Jian Ghomeshi investigation
playing out at taxpayers’ expense
 Jian Ghomeshi’s quiet accomplice: Why
the CBC must be investigated, too
 Two CBC execs on leave of absence after
Jian Ghomeshi investigation
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3. 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 (ie. union)
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4. Responding to allegations
 Notify respondent
– Warn re interference
 Be mindful of complainant and accused
– Ensure safe work environment
 Refer parties to EAP
 Do not promise lack of repercussion
 Interim suspension?
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5. Hallmarks of Good Investigation
 Unbiased
 Thorough
 Timely
 Well documented
 Sound conclusion
 Action items
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6. Conducting investigation
 Internal vs external
– Seriousness of allegations
– Sensitivity of issues
– Appearance of bias
– Expertise
– Availability
– Cost
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7. 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
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8. Witnesses
 Consider order
 Do not promise confidentiality
– Require that they do
 Warn against interference
 No reprisals for participation
 Inquire about other witnesses
 Obtain documents
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9. Witnesses
 Provide respondent meaningful
opportunity to respond to allegations
 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
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10. Preparing a Report
 Background / allegations
 Mandate
 Process
 Documents
 Witnesses
 Policies
 Evidence
 Conclusions
 Recommendation? 10

11. Report
 Assess credibility
 Compare to evidence
 What has “air of reality”?
 Don’t cop out – reach a conclusion
 Ensure it is supportable
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12. 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
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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

14. Vernon v. British Columbia
 30 year employee accused of
bullying/harassment
 Known as “The Little General”
 Offensive language, racial and other
inappropriate comments

15.  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
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16. Can you package someone out
instead of investigating
misconduct?
 Investigations becoming more important
 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
Brownson v. Honda Canada Mfg., 2013 ONSC 896

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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”

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For Just Cause
McKinley v. B.C. Tel., 2001, the Supreme Court of Canada:
More specifically, the test is whether the employee’s
dishonesty gave rise to a breakdown in the employment
relationship. This test can be expressed in different ways. One
could say, for example, that just cause for dismissal exists
where the dishonesty violates an essential condition of the
employment contract, breaches the faith inherent to the work
relationship, or is fundamentally or indirectly inconsistent with
the employee’s obligations to his or her employer. “In
accordance with this test, a trial judge must instruct the jury to
determine: (1) whether the evidence established the
employee’s deceitful conduct on a balance of
probabilities; and (2) if so, whether the nature and
degree of the dishonesty warranted dismissal.”

19.  Capital Punishment of Employment Law
 Employer must prove:
1. that the alleged misconduct took place,
and
2. that the nature or degree of misconduct warranted dismissal,
bearing in mind all relevant circumstances
 Proportionality is guiding principle – “punishment must fit the
crime”
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20. 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
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21. Off-Duty Conduct
 Generally, what you do on your time is your business
 Unless
– The conduct renders the employee unable to perform his
duties satisfactorily.
– The conduct interferes with the efficient management of
the operation or workforce.
– The conduct leads to a refusal or reluctance of other
employees to work with him.
– The conduct harms the general reputation of the Employer,
its product or its employees.


22. Implementing Policies
A. Have a policy
B. Use clear and unambiguous language
C. Keep the policy up to date
D. Publicize the policy
E. Make employees aware of concerns
F. Ensure supervisors and managers are aware
of the policy and how to monitor
G. Monitor behaviour
H. Discipline violators

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Without Just Cause
 Notice of Dismissal or Pay in Lieu
 Two sources of entitlement
– Employment Standards Act /
Canada Labour Code
– Common Law
 Can contract out of common law

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Common Law: The Length of
Notice
 Requirement: “reasonable” notice
of dismissal
 The Bardal Factors
1) Length of service
2) Age
3) Position / Character of Employment
4) Availability of Similar Employment

25. What is “reasonable”?
 No “rule of thumb” or direct 1:1
relationship between years of service and
months of reasonable notice
 Beware the short-term employee
 Inducement
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26. The Changing Times
 End of mandatory retirement, people
working longer --> Wrongful dismissal
claims by workers in 70s and 80s!
 Recent decision:
I do not think there is a place in this social reality
for an automatic presumption that persons should
or would naturally retire on reaching senior age.
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27. The Changing Times
Di Tomaso v. Crown Metal Packaging Canada
LP:
there is recent jurisprudence suggesting
that, if anything, (position/character of
employment) is today a factor of declining
relative importance.
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Without Cause: Options
 Working notice
– must allow opportunity to
look for new employment
 Salary & benefit continuance
 Lump-sum
 Combination
 Dangers of failing to continue benefits

29. Employment Agreements
 Use them!
 Do it properly
– Before there’s already an agreement
– With consideration
– Explained and understood
– Independent legal advice

30. Employment Agreements
 Basic Checklist:
– Duties (maintain flexibility)
– Remuneration and benefits (maintain
flexibility)
– Restrictive Covenants
– Vacation
– Termination
– No conflicting obligations

31. Employment Agreements
 Basic Checklist (cont’d):
– Hours of work
– Vacation / holidays
– Dress code
– Conflict of interest
– Expenses
– Social Media

32. Termination Clauses
 Enforceable if done properly
 Avoid uncertainty of “reasonable
notice” & reduce dismissal costs
 Use clear language
 Don’t go below employment
standards
 Address probation period
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33. Termination Clause: Benefits
 Employer sought to enforce termination clause
 Termination clause provided for pay in lieu of notice of
termination, but did not provide for continuation of
benefits
 Although the employer did, in fact, continue
employee’s benefits during notice period, by failing to
require it, the contract provided for less than the ESA
and was therefore unenforceable.
 As a result, common law requirement of reasonable
notice applied:
Stevens v. Sifton Properties Ltd., 2012 ONSC 5508

34. Mitigation & Termination
Clauses
 Employment contract provided that employee would
be entitled to 6 months of notice, or pay in lieu
thereof, in the event he was dismissed on a without
cause basis.
 No mention of mitigation
 Within weeks of the dismissal, employee obtained new
employment with comparable compensation.
 Ontario Court of Appeal: If employment contract
contains a termination clause, employee will not be
required to mitigate his or her damages by seeking
new employment unless the clause specifically says so
Bowes v. Goss Power Products Ltd., 2012 ONCA 425

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Stuart E. Rudner
srudner@rudnermacdonald.com
416.640.6402 or 905.530.2484
Web: www.rudnermacdonald.com
Twitter: @CanadianHRLaw
LinkedIn: Connect with me, join the
Canadian HR Law Group and visit the Rudner
MacDonald Page
Blog: Rudner MacDonald Blog
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http://www.hrreporter.com/blog/canadian-hr-law
FaceBook: Rudner MacDonald Page
Google+: Canadian HR Law, Rudner MacDonald
Page
YouTube: Rudner MacDonald channel

36. Common Myths
 Every employee has a probation period during
which they can be dismissed without notice or
cause.
 Unless a contract states otherwise, employees are
only entitled to the Employment Standards Act
minimum amounts of notice / severance
 Termination clauses are not enforceable
 Only the most recent period of employment
counts when calculating entitlement to severance
pay
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37. How Much Notice / Severance?
 You have to give a dismissed worker a “package”
 The common law requires one month of notice for
every year of service (or two weeks for every
year, or some other absolute amount).
 Pay in lieu of notice of dismissal includes base
salary only.
 An employer can discount the amount of notice of
dismissal required if the employee’s conduct or
performance was not up to par
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38.  You can’t fire someone in Canada
 Providing positive or negative references to
dismissed employees can result in liability.
 Non-competition covenants are enforceable
against former employees.
 If you are concerned about a human rights
complaint, dismissing the individual on a without
cause basis will preclude a claim being brought.
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