A workplace investigation that is not done properly can result in significant legal liability for an employer and sometimes, even the investigator.
In a recent decision from Ontario, Doyle v Zochem Inc. et al., 2017 ONSC 920 (CanLII), the court ordered an employer who conducted a haphazard workplace investigation into a complaint of sexual harassment and then fired the plaintiff, to pay the employee 10 months notice as well as $85,000 in moral and human rights damages.
48-year old Melissa Doyle, was a Plant Manager and Health & Safety Coordinator at Zochem. Her duties involved supervising a group of workers, all of whom were male.
The environment in which Doyle worked had a locker room mentality and she was subject to sexual harassment. The main instigator was Rogers, the Plant Maintenance Manager. He had photographs and calendars of scantily-clad women in his office, stared at Doyle’s breasts, engaged in sexual banter, and made numerous lewd comments toward her.
In 2010, Doyle reported the harassment to a third-party company that Zochem had hired to do an employee survey on violence and harassment. She also confronted Rogers, who stopped making comments for a while.
After its survey, the third-party company concluded that Zochem had a culture of intimidation, bullying and verbal abuse and a history of violence and recommended that Zochem implement a training plan in order to comply with its obligations under Ontario’s health and safety legislation. However, Zochem did not follow the recommendations.
When Rogers resumed harassing Doyle and withheld information which she needed in order to perform her job, Doyle asked the Chief Engineer to intervene, at a production meeting held on July 14, 2011. This led to her being demeaned, belittled and insulted by both Rogers and the Chief Engineer to the point that she was forced to leave the meeting in tears. Doyle then complained to Stephanie Wrench, the Assistant General Manager, who, unbeknownst to Doyle, was planning on terminating her and had already prepared a termination letter.
Wrench “investigated” Doyle’s complaints and concluded that they were unsubstantiated. The investigation was done in one day. She then proceeded to terminate Doyle’s employment, within five days of the complaint being made. At the time of termination, Wrench also tried to claim that there were performance issues although Doyle had not previously been told about them.
Upon termination, Zochem offered Doyle six months severance and told her she had three days to consider the offer. She was also escorted out without an opportunity to go back to her office. At the time of termination, Doyle had worked for Zochem for nine years.
The evidence showed that Doyle felt betrayed, abused, sad and upset as a result of Zochem’s actions and that she had migraines, chest pains and sleep disturbances. She also had nightmares about Rogers’ harassment and the workplace meeting of July 14. She was diagnosed as having a major depressive disorder, with anxiety and was placed under the care of a psychiatrist.
Doyle sued Zochem for wrongful dismissal.
At trial, Zochem tried to argue that it had after-acquired cause to terminate Doyle, but was unsuccessful.
The court held that Doyle had experienced significant sexual harassment at work and that there was a culture of harassment, abuse and intimidation at Zochem. The court also found that Zochem had made no attempt to fix the problem and had failed to take Doyle’s complaints seriously.
The court went on to note that instead of dealing with the harassment that Doyle had suffered, Zochem had terminated Doyle’s employment to get rid of her and that Zochem’s attempts to claim after-acquired cause, was spurious.
Based on Doyle’s length of service, position and experience, the court held that she was entitled to 10 months reasonable notice. The court also awarded Doyle $60,000 in moral damages because of the way in which Zochem had treated Doyle during her dismissal.
Doyle was further awarded $25,000 in damages for breach of her human rights.
COURT OF APPEAL
Zochem appealed the amount of the moral damages and argued that it should be reduced to $20,000, which the Court of Appeal rejected.
The Court then awarded Doyle a further $40,000 in costs plus HST and disbursements on the basis that Zochem’s conduct in pursuing the appeal was a continuation of its oppressive conduct towards Doyle.
This case highlights the need for employers to investigate employee complaints properly. One of the reasons for the court awarding Doyle moral damages, was the ineffective investigation that Zochem conducted.
The investigation flaws included:
- the investigation being conducted by a person who had no training;
- a deficient investigation – it was completed in a day despite the seriousness of the complaint;
- the notes of the investigator showing a clear bias against Doyle; and
- failing to inform Doyle about the outcome of the investigation.
To avoid/minimize a finding of a deficient investigation, employers should do the following:
- implement a proper complaint process so that employees know what to do and how to make a complaint when they are faced with bullying and harassment;
- when someone complains, take the complaint seriously and determine whether an investigation is needed;
- use an external investigator unless you have in-house expertise to conduct the investigation;
- if the investigation is conducted internally, make sure it is thorough and unbiased;
- inform the complainant and the alleged harasser(s) of the outcome, once the investigation is completed; and
- take appropriate steps to address the findings of the investigation.
Integritas Workplace Law trains human resources practitioners, line managers and supervisors who conduct, or may be required to conduct, workplace investigations on how to conduct investigations in an effective and legally defensible way. Contact firstname.lastname@example.org for more details.