January 10, 2017
In a recent decision of the Superior Court of Justice, a 48 year old employee with nine years of service was awarded $25,000 for human rights damages and $60,000 for moral damages, in addition to a notice period of ten months.
The employee was subjected to repeated physical and verbal harassment by her boss. She received little to no support from upper management, who were well aware of what was transpiring in the workplace and the fact that the employee suffered from clinical depression. It was found that the employer turned a blind eye to what was happening because the harasser was a key employee.
In light of the ongoing issues between the employee and her boss, the decision to terminate the employee’s employment was made and she was to be replaced with a male employee in order to avoid future issues. The employee filed a sexual harassment complaint against her boss before the scheduled date of her termination. A senior accounting executive with no training or experience in human rights issues conducted a one day investigation. In the course of the investigation the “investigator” told the employee to stop being so sensitive and emotional, and that crying made her look weak. The employee subsequently had to take a few days off work as the employer’s conduct triggered her depression. The court held that the investigation was flawed, biased and carried out in a cavalier manner, which warranted an award of human rights damages.
The termination was carried out five days after the employee made her sexual harassment complaint. She was offered a take it or leave it termination package of six months. The court found that the termination package not only attempted to deny the employee’s common law entitlements on termination but also denied her of her statutory severance amounts.
As a result of the employer’s conduct, including the manner in which the investigation was carried out and the termination of the employee’s employment, the employee was required to access her short- term disability benefits, as she spiraled into depression. Her diagnosis was confirmed by the employer’s doctor but despite this, the employer opposed the employee’s receipt of short-term disability benefits, which were self-funded, and later opposed the employee’s application for long-term disability benefits.
The court found that the employer’s actions warranted a finding of moral damages, as the employer engaged in conduct during the course of dismissal that could be said to be unfair or carried out in bad faith, conduct that was untruthful, misleading and unduly insensitive. Such conduct included, failing to use progressive discipline, alleging after acquired cause, attempting to get the employee to sign a release, which would preclude her from pursuing her discrimination and disability claims.
This case is a reminder to employers of their heighten duty to carefully and thoroughly address complaints of workplace violence and harassment by establishing detailed policies and procedures for reporting complaints and carrying out investigations of same and the risk of attempting to sweep known issues of sexual harassment under the rug by terminating the victim of the harassment.
It would be prudent for employers to review their policies and procedures in this regard, especially in the face of recent amendments to their statutory obligations as discussed in our blog post here.
Doyle v Zochem Inc et al (2016 ONSC 3188)