Presented November 8, 2018 to The Talent Company

1. www.rudnerlaw.ca
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Harassment and Investigations in
the #MeToo Era
The Talent Company
November 8, 2018
Presented by: Stuart Rudner
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2. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Disclaimer
The user is authorized to use this presentation for the user’s own needs only, and is not
authorized to make copies thereof for sale or for use by others.
This presentation is not provided for the purpose of providing legal advice.
Every situation is unique and involves specific legal issues. If you would like legal
advice with respect to the topics discussed in this presentation, or any Employment
Law matter, we would be pleased to assist you.
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3. www.rudnerlaw.ca
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Overview
1. Workplace Harassment in 2018
2. Bill 132
3. Creating a Written Policy
4. Responding to Allegations
5. Conducting Investigations
6. Training Workers
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4. www.rudnerlaw.ca
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Headlines You Don’t Want
CBC protected Jian Ghomeshi, say two ex-colleagues with new harassment
claims
Netflix’s Disturbing Sexual-Assault Hypocrisy
Former Comcast Employees Describe Sexual Harassment Allowed to Run
Amok at Call Centers for Years
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5. www.rudnerlaw.ca
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Risks of Non-Compliance
● Bad PR
● Legal liability
○ Wrongful dismissal
○ Punitive damages
○ Moral damages
○ Infliction of emotional distress
● Fines under the OHSA
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6. www.rudnerlaw.ca
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Bill 132
● What we know
○ Lots of new inspectors
○ Influx of harassment and sexual harassment complaints
○ Managing is not harassment, even if harsh
● Still more questions than answers!
○ Employers and inspectors figuring it out together
○ Employer experiences and anecdotes
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7. www.rudnerlaw.ca
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Bill 132
● What we know (cont’d)
○ Bill 132 applies to third parties (i.e. customers, tenants, etc.)
○ Increased fines under the OHSA
● What do you need to do?
○ Update policies & procedures
○ Ensure you are prepared for complaint
○ Know how to conduct investigation
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8. www.rudnerlaw.ca
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Bill 132
Expanding the Definition of “Workplace Harassment”:
● Engaging in course of vexatious comment or conduct against a
worker in a workplace that is known or ought reasonably to be
known to be unwelcome; or
● Workplace sexual harassment
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9. www.rudnerlaw.ca
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“Workplace Sexual Harassment”:
● Engaging in a 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
● Making a sexual solicitation or advance where the person making the
solicitation or advance is in a position to confer, grant or deny a benefit or
advancement to the worker and the person knows or ought reasonably to
know that the solicitation or advance is unwelcome
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10. www.rudnerlaw.ca
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Not Harassment
A reasonable action taken by an employer or supervisor
relating to the management and direction of workers or the
workplace is not workplace harassment
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11. www.rudnerlaw.ca
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New Obligations for Employers
● Develop and maintain a workplace harassment program in
consultation with joint health and safety committee or health and
safety representative (if any)
● Establish a complaint mechanism for reporting complaints or
incidents of workplace harassment to the employer AND to a person
other than the employer or supervisor, if the employer or supervisor is
the alleged harasser
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12. www.rudnerlaw.ca
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New Obligations for Employers
● Conduct investigation whenever it becomes aware of a complaint or
incident of workplace harassment
● Maintain confidentiality of information
○ Unless disclosure is necessary for purposes of investigating or taking
corrective action with respect to incident or complaint, or is otherwise
required by law
● Notify complainant and respondent in writing of the results of an
investigation and any corrective action taken
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13. www.rudnerlaw.ca
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New Powers for Inspectors
● Power to order an independent investigation, at expense of
employer, by an impartial person and to obtain a written report
by that person
● Ministry hired ~30 new inspectors
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14. www.rudnerlaw.ca
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Bill 132 in Practice
There are Still More Questions than Answers!
● Limited case law applying Bill 132
● Much of what we have learned comes from experiences shared
between employers and counsel
● The Ministry’s Code of Practice contains the most
comprehensive guidelines with respect to compliance
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15. www.rudnerlaw.ca
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New Tort of Harassment
Merrifield v The Attorney General: Ontario Superior Court held
that harassment, including workplace harassment, is a cause of
action in this province
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16. www.rudnerlaw.ca
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New Tort of Harassment
● In Merrifield, RCMP officer brought civil claim alleging superiors
harassed & bullied him
● Judge found each branch of test met and focused on RCMP’s failure
to investigate
Award:
● General damages for harassment and intentional infliction of mental
suffering: $100,000; and
● Special damages for lost income due to career setbacks: $41,000
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17. www.rudnerlaw.ca
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New Tort of Harassment
The legal test:
● Was conduct of defendant toward plaintiff outrageous?
● Did defendant intend to cause or have reckless disregard for
causing plaintiff to suffer from emotional stress?
● Did plaintiff suffer from severe/extreme emotional distress?
● Was outrageous conduct of defendant the actual and
proximate cause of emotional distress?
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18. www.rudnerlaw.ca
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Case Law
Anderson v Law Help Ltd. and Alessandro
● Anderson was Legal Assistant/Paralegal
● Alleged individual respondent subjected her to sexual harassment,
sexual advances and solicitations, and reprisal in the workplace
○ Led to her resigning only two months after starting work
● Sought $50,000 as compensation for injury to dignity, feelings and
self-respect at the HRTO
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19. www.rudnerlaw.ca
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Case Law
Anderson v Law Help Ltd. and Alessandro
● Evidence of harassment via text messages
● Respondents held jointly and severally liable
Award:
● Damages pursuant to Human Rights Code: $20,000.00;
● Damages for lost income: $5,400; and
● Monetary compensation for future counselling sessions: $2,000.
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20. www.rudnerlaw.ca
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Case Law
Doyle v Zochem Inc.
● Doyle was plant supervisor and health and safety coordinator, and only
woman in the plant
● Experienced repeated sexual harassment from plant maintenance
manager, including: staring at her breasts and miming taking a picture of
them, repeatedly telling her she needed to get “laid”, or needed “a little
pounding”, etc.
● Doyle reported the sexual harassment, but employer did only a “cursory”
investigation
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21. www.rudnerlaw.ca
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Case Law
Doyle v Zochem Inc.
● She was assured that her job was secure, but was dismissed one week later
(decision had already been made)
● She suffered serious mental distress as a result
Award:
● Damages for wrongful dismissal: $55,849.99;
● Damages pursuant to the Human Rights Code: $25,000.00; and
● Moral damages: $60,000.00
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22. www.rudnerlaw.ca
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Increased Fines under
the OHSA
As of December 14, 2017, fines for violations of the OHSA have
increased substantially:
● Fine for individuals increased from $25,000.00 to $100,000
● Fine for corporations increased from $500,000.00 to $1,500,000.00
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23. www.rudnerlaw.ca
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Complying with Bill 132
● Policies and processes should be written, communicated, enforced and
updated as needed
● Retain records of harassment and discrimination complaints, investigation
processes and reports
● Act in a timely manner
● Confidentiality should be maintained
● Train your employees
● Investigate complaints properly before taking disciplinary action
● Communicate findings of the investigation with the parties, and outline what
steps will be taken to resolve the matter
● Ensure a safe work environment free from harassment, discrimination, and
reprisals
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24. www.rudnerlaw.ca
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Creating a Written Policy
Essential Elements of Policy/Program
Mission Statement
The Company’s commitment to maintaining a harassment free
workplace
Clear statement of who the Policy applies to
Encourage Reporting
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25. www.rudnerlaw.ca
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Creating a Written Policy
Essential Elements of Policy/Program
● Definition of Workplace Harassment/ Definition of Workplace
Sexual Harassment along with examples of each
● Process and Measures for Reporting Harassment to the
Employer/Supervisor, and to an Alternate
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26. www.rudnerlaw.ca
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Creating a Written Policy
Essential Elements of Policy/Program
● Procedure for Conducting Investigations
● Process by Which Complainant and Respondent will be Advised, in
Writing, of Outcome of Investigation
● Measures for Preserving Confidentiality
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27. www.rudnerlaw.ca
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Creating a Written
PolicyEssential Elements of Policy/Program
● Sanctions for Breach of Policy
● Prohibition on Reprisal for Good Faith Complaints/Retaliation
Against Anyone Participating in an Investigation
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28. www.rudnerlaw.ca
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Creating a Written Policy
Essential Elements of Policy/Program
● The Provision of Training and Instruction to Workers
● Record keeping policy
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29. www.rudnerlaw.ca
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Implementing Policies
●Publicize policies
●Train all employees: staff, managers, supervisors, executives
●Monitor behaviour
●Discipline offenders
●Update regularly
●Incorporate into employment contracts
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30. www.rudnerlaw.ca
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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 (i.e. union)
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31. www.rudnerlaw.ca
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Responding to Allegations
● Notify respondent
○ Warn re interference
● Be mindful of complainant and accused
○ Ensure safe work environment
○ Consider referral to EAP
○ Interim suspension / transfer?
● Do not promise lack of repercussion
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32. www.rudnerlaw.ca
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Hallmarks of a Good
Investigation
● Unbiased
● Thorough
● Timely
● Well documented
● Defensible conclusions
● Recommendations & action items
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33. www.rudnerlaw.ca
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Conducting Investigations
First Steps in the Investigation Process
● Consult your policy
● Contact your Employment Lawyer
● Determine who is going to conduct the investigation
○ Internal or external third party investigator?
● Develop an investigation plan
● Do not begin with a conclusion or investigate for purpose of proving
misconduct
● Are any interim measures necessary?
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34. www.rudnerlaw.ca
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Conducting Investigations
● Internal vs external
○ Seriousness of allegations
○ Sensitivity of issues
○ Appearance of bias
○ Expertise
○ Availability
○ Cost
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35. www.rudnerlaw.ca
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Conducting Investigations
Interviewing the Complainant/Respondent and Witnesses
● Interview complainant
● Do not make promises of confidentiality you cannot keep
○ But promise reasonable efforts
● Collect
○ All relevant details
○ Evidence with respect to incident(s) (e.g. emails, text messages, photos,
etc.) and
○ Names and contact information of witnesses
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36. www.rudnerlaw.ca
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Conducting Investigations
Interviews
● Respondent must be given a fulsome opportunity to respond to
allegations
● Including full understanding of specific allegations made against
them
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37. www.rudnerlaw.ca
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Conducting Investigations
Interviews
● Any witnesses must also be interviewed and any additional evidence
collected
● It may be necessary for complainant/respondent or witnesses to be
interviewed multiple times in order to respond to new evidence
obtained during investigation process
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38. www.rudnerlaw.ca
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Conducting Investigations
Interviews
● Investigator must take detailed notes
● Interviewee to sign off / confirm
● All participants should be reminded of obligations of
confidentiality
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39. www.rudnerlaw.ca
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Conducting Investigations
Reaching a Conclusion
● Once all evidence is collected, investigator must reach a conclusion
● Was there harassment or not?
● Don’t cop out – reach a conclusion
● Assess credibility
○ Compare to evidence
○ What has “air of reality”?
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40. www.rudnerlaw.ca
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Conducting Investigations
Reaching a Conclusion
● Decision based on balance of probabilities
● Ensure it is supportable
● You may be cross-examined
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41. www.rudnerlaw.ca
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Preparing a Report
● Background / allegations
● Mandate
● Process
● Documents
● Witnesses
● Policies
● Evidence
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42. www.rudnerlaw.ca
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Conducting Investigations
Corrective Action
● Employer must then determine what, if any, actions must be taken based
on investigator’s report
● Options include:
○ (Re)training
○ Mediation
○ Verbal warning
○ Written warning
○ Suspension (with pay)
○ Dismissal (with or without cause)
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43. www.rudnerlaw.ca
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Conducting Investigations
Communicating the Results
● Complainant and respondent must be informed, in writing, of
results of investigation and any corrective action to be taken
○ Does not mean providing them with a copy of investigation
report
● How much detail an employer is required to provide to a
complainant/respondent is not expressly set out
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44. www.rudnerlaw.ca
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The Importance of a Fair
Investigation
● Investigate first
● Ensure fairness, objectivity, thoroughness
● Give opportunity to respond
● Often, employee response is critical factor in determining
appropriate discipline
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45. www.rudnerlaw.ca
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Case Law
Vernon v British Columbia
● 30 year employee accused of bullying/harassment
● Known as “The Little General”
● Offensive language, racial and other inappropriate comments
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46. www.rudnerlaw.ca
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Case Law
Vernon v British Columbia
● Court found that investigators
○ Pre-judged
○ Attacked accused and interrogated those who supported her
○ Admitted that “when she wrote the Recommendation Memo, instead
of objectively reporting the investigations findings, she was trying to
prove Ms. Vernon guilty of misconduct”
As the court concluded, the “investigation was flawed from beginning to
end. It was neither objective nor fair”
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47. www.rudnerlaw.ca
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Case Law
Vernon v British Columbia
● Result
○ 18 months’ notice
○ $35k in “The Damages Formerly Known as Wallace”
○ $50k punitive damages
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48. www.rudnerlaw.ca
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Case Law
Burlington (City) v Canadian Union of Public Employees, Local 2723
● Employee brought harassment complaint against two co-workers.
Employer dismissed the two co-workers
● Another employee, a close friend of the co-workers, brought a
harassment complaint against the first employee
● Employer proceeded with investigation, concluded grievor had sexually
harassed complainant, and dismissed her
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49. www.rudnerlaw.ca
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Case Law
Burlington (City) v Canadian Union of Public Employees,
Local 2723
● Arbitrator Slotnick reinstated grievor - claims of sexual harassment were not
made out and had been exaggerated
● Employers have a responsibility to “guard against complaints that are
made for improper ulterior motives”
● Employer almost blindly overlooked circumstances of complaint and failed to
acknowledge possibility that complainant may have been “embellishing” his
story as “pay back” against the grievor
● Investigator was aware complaint could be less than genuine, but did not
mention / assess this in report
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50. www.rudnerlaw.ca
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Case Law
● TAKEAWAY:
○ Employers and investigators must consider all relevant evidence before them
in conducting investigation and reaching a conclusion, including evidence that
may suggest the employer’s complaint reporting process is being abused for
ulterior motives
○ Where employer discovers that a complaint has been made in bad faith,
employer must be prepared to respond
○ Employers should include wording in harassment policy indicating employees
who use complaint process to make allegations/complaints for malicious
purposes will be subject to discipline, up to and including dismissal for cause
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51. www.rudnerlaw.ca
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Training Workers
● All workers/supervisors are required to complete general Health
and Safety Awareness Training
● In addition to this general training, workers must be trained
specifically on the employer’s workplace harassment and
violence policy and program
● Formal training is better than letters/policies
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52. www.rudnerlaw.ca
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Training Workers
● Training must be appropriate to duties/responsibilities of
employees
○ e.g. More training for managers and supervisors on responding
and recognizing harassment
○ Investigation training mandatory for anyone who may conduct
internal investigations
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53. www.rudnerlaw.ca
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Training Workers
● New employees should be trained ASAP after joining
● Employees should confirm receipt of training by signing off
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54. www.rudnerlaw.ca
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Questions?
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55. www.rudnerlaw.ca
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Contact Us
416.864.8500
905.209.6999
info@rudnerlaw.ca
100 Allstate Parkway Suite 600
Markham, ON L3R 6H3
55
Presented By:
Stuart Rudner
416.864.8501
stuart@rudnerlaw.ca
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