A Failure to Properly Handle an Investigation Leads to a Costly Award
Ms Jones worked in a male dominated workplace for a City in Ontario. She was subjected to years of harassing behaviours, including sexual comments and touching and after trying to deal with the behaviour for years, filed an internal complaint. The City conducted an investigation. Ms Jones was unhappy with the response and felt that she would be subject to further harassment and retaliation. Ms Jones filed a Human Rights complaint against the harasser and some of the leadership with the City.
Ms Jones had brought her complaint to Mr Williams, who agreed that the behaviour was inappropriate and that it needed to stop. However, instead of dealing with the matter, he deferred the complaint to Mr Johnson who had direct responsibility for the employees in question. Mr Williams did not contact a Human Rights Specialist and testified that it was his view that the matter did not meet the criteria for a complaint as set out in the City’s policy document. Rather, he believed the matter amounted to a conflict between two employees that should be resolved by the Manager.
Ms Jones took the matter to Mr Johnson as instructed but as he was on vacation, it was two weeks until she was able to talk to him. When she explained her complaint, Mr Johnson told her that he had spoken to Mr Smith about that type of behaviour in the past. Mr Johnson said that if she wanted to file a complaint, she would have to get a union representative, come back and see him. Mr Johnson told Ms Jones that her allegations, if substantiated could likely end in the termination of Mr Smith and he described Mr Smith as an old school employee who was not malicious but simply did not know any better. Ms Jones felt that Mr Johnson was trying to get her to decide not to file a complaint.
Ms Jones was not satisfied with the investigation and the communication at the end and felt that the behaviour would not stop as a result. There was a further incident of touching in the workplace and Ms Jones was forced to work the night shift in order to get away from Mr Smith.
Ms Jones asked for information relating to the investigation and discipline to Mr Smith but did not receive responses. Her Union tried to get information, unsuccessfully. Ms Jones filed a complaint with Human Rights. Her complaint relied on essentially the same information presented earlier, however there were also concerns of retaliation like manipulating the overtime schedule to deny her opportunity and excessive scrutiny of her work. Ms Jones contended that her workplace had been poisoned.
A single Arbitrator heard the facts of the complaint and analyzed the arguments and precedents set forth by both the Union and the City. The Arbitrator found that Ms Jones was subject to harassment in the workplace, that Mr Smith caused Ms Jones’s work environment to be poisoned on the basis of her sex, and that she was subject to reprisals after filing a complaint.
The Arbitrator turned to the question of the City’s liability and found that as a person in a position of authority, Mr Smith was part of the “directing mind” of the organization, such that his conduct with respect to Ms Jones effectively became that of the City. Consequently, the Arbitrator found that the City was responsible for Mr Smith’s behaviour. The Arbitrator also concluded that Mr Smith caused Ms Jones’s work environment to be poisoned, while he was a member of management, and found the City liable for the poisoned work environment.
The Arbitrator turned to the question of the Employer response and cited: “…Laskowska v. Marineland of Canada, supra [cited in Harriott v. National Money Mart, supra],…” for evaluation of the Employer response. The Arbitrator found that the Employer had sufficient policies but failed to properly educate the employees. The Arbitrator ruled that the Employer did not treat the complaint seriously and did not deal with the matter promptly and sensitively. The Arbitrator ruled that the investigation was flawed, in that the HRS did not interview witnesses to the events described in the complaint. The Arbitrator found that the City failed to take appropriate action to ensure that Ms Jones’s workplace would remain safe and that no further harassment would occur, namely, removing Mr Smith as her supervisor. The Arbitrator found both Mr Williams and Mr Johnson personally in breach of the Human Rights Code. The Arbitrator ordered general damages against the City in the amount of $25,000.00, as well as stipulating some training and eduction in the workplace.
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