An employee in a managerial role is found to be engaging in sexual harassment: what is a reasonable punishment?

| May 15th, 2017 | No Comments »

When an employee is in a supervisory role and there is adequate evidence that the individual engaged in acts of sexual harassment towards other employees, then the employer’s obligation to its workers leaves limited options. Termination may be justified punishment and also the only option available to the employer due to the obligation to protect workers from sexual harassment.

Ontario Human Rights Code: Sexual Harassment

Of course, there are varying degrees of sexual harassment. Legally, sexual harassment is defined under the Ontario Human Rights Code as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome.” By definition, there must be a course of action here that is unwelcome, which implies that single incidences may not require harsh punishment. However, if the conduct is serious, then termination is warranted.

Individuals in managerial roles are further prohibited by such behaviour because human rights law specifically prohibits sexual solicitation or advancements by managerial personnel. The Ontario Human Rights Code states that individuals in a workplace are entitled to be free from sexual solicitation or advancements from those in a position to deny or provide an advancement or benefit within a working relationship. In other words, those that possess the authority to grant or deny workers benefits or advancement in their careers are explicitly prohibited from acts of sexual solicitation and/or advancement upon workers in the workplace. This includes supervisors, managers, employers and so on.

Case Example: Gonsalves v. Catholic Church Extension Society of Canada

To illustrate the above, take the case of In Gonsalves v. Catholic Church Extension Society of Canada. Here, Gonsalves was the financial manager and supervised 10 female employees. Gonsalves was accused by a number of these workers of inappropriate comments, touching (which was also criminal), and using sexually charged language. It was also apparent that these workers were afraid to come forward because they were concerned about their job security. The president (the priest) heard these allegations and immediately fired Gonsalves, even though this behaviour ceased months prior. Further, there was no sexual harassment policy nor established rules of discipline and/or investigations.

The court ruled that termination was the right punishment due to the seriousness of the sexual harassment that took place. Although there was not policy in effect, this was a zero-tolerance situation. Being in a supervisory role, Gonsalves could not be allowed to continually supervise employees in light of the misconduct. Further, one particular employee was threatened by Gonsalves to refrain from reporting the sexual advancements he had made towards her. This seriously impacted this individual and continuing to employ Gonsalves would cause this individual significant distress. The employer here had no other option but to terminate Gonsalves out of an obligation to provide a safe workplace free from sexual harassment.

Final Thoughts:

It is important to be aware that individuals in a managerial or supervisory role hold a significant amount of power over regular employees, so termination for sexual harassment may be the only option for employers. Employers are obligated to provide a workplace free of sexual harassment, so It is important to respond to any allegations against management or supervisors appropriately.  Proper investigations and precautions to protect those employees under the supervision of the accused should be taken as soon as possible because these employees are most vulnerable.

Failure to investigate alleged misconduct can be costly

| April 2nd, 2014 | 1 Comment »

It is not uncommon for employers to fire first and ask questions later, especially in instances of alleged employee misconduct. Stelcrete Industries Ltd., a rebar assembly plant in Welland, Ontario learned that impulsive actions can be costly.

Stelcrete Industries Ltd. chose to stay open on Family Day and told Ludchen, the plant supervisor, to post a written announcement of their substitute day off. An undercover investigator posing as a Stelcrete employee informed management that although she did not witness the occurrence she was told that the supervisor “freaked out,” threw a garbage can and then made a discriminatory remark about the ethnicity of the company’s owners when he was told to post the announcement. Satisfied that Ludchen was guilty of misconduct the company immediately fired him.

At a recent trial to determine whether the supervisor was wrongfully dismissed, Ontario Superior Court Justice Joseph Henderson ruled in favour of the former supervisor because Stelcrete was unable to connect the man’s alleged comments back to him. The undercover investigator’s testimony about what others told her was hearsay, and none of the other employees who testified corroborated the alleged remarks.

What Daniel Lublin, employment and labour lawyer at Whitten Lublin PC advises is that, “When dealing with alleged employee misconduct, the onus is squarely on the employer to prove that the punishment fits the crime.”

Without first investigating the situation, or at least confronting the employee with its accusations, Stelcrete was unable to provide the evidence required to convince the judge that the company acted correctly. As a result, the former supervisor was awarded his legal costs, 12 months’ pay and damages in lieu of his benefits and a bonus he ordinarily received.

In his Globe and Mail article, Don’t fire first and ask questions later Lublin summarizes Ludchen v. Stelcrete Industries Ltd., 2013, and offers employers advice on how to proceed with investigating allegations of misconduct before dismissing an employee.

How to Handle Violence at Work

| April 25th, 2013 | No Comments »

Conflicts between employees are inevitable and if left unresolved they can often create a negative work environment and affect productivity levels. In these scenarios, unfortunately, violence at work may arise.

 

Luckily, there are steps that can be taken to prevent workplace violence. Daniel Lublin has given some practical suggestions for employers in his recent Globe and Mail column, What to do when violence erupts in the workplace.

 

  1. Perform a proper investigation:  In any case of serious misconduct or allegations of fraud, employers must be able to demonstrate exactly what occurred and show that all of the circumstances were considered.  The same goes for violence at work. In more serious cases, this could require a third-party investigation.
  2. Consider all the facts:  If the conduct is out of character, there is probably a reason.  Find out what that reason is instead of learning about it in a lawsuit.
  3. Have patience:  Most employers tend to see their cases through rose-coloured glasses and are quick to rush to judgment, especially where there is a preferred outcome.  This only makes it worse.  Once an employer hits his or her breaking point, the company should slow down its decision-making process to cover all the bases, rather than speed it up.  The legal onus is squarely on the employer to do so.

 

The complete article can be found and read in the Globe and Mail.  Both employers and employees can educate themselves on how to deal with violence at work before it occurs by consulting with an employment expert.

 

Ferry Captain’s “Red Herrings” Won’t Save His Job

| April 26th, 2011 | No Comments »

Earlier this month, a final ruling was made in a case that started over 5 years ago with the crashing and sinking of a BC Ferry ship.  Sadly for the former captain of the vessel, the courts decided his argument for wrongful dismissal was about as buoyant as his former ship. 

In 2006, BC Ferry, The Queen of the North went south after veering off course and crashing into Gill Island at full speed.  In total, 99 passengers were rescued and two were considered dead.

An investigation into the disaster concluded that the navigational crew was at fault for failing to make a critical course change.  According to BC Local News, the Transportation Safety Report also indicated that there was a “total safety breakdown which included disabled systems, insufficient training, and human failure to keep a watch.” 

Captain Colin Henthorne was fired shortly following the inquiry – not because of his involvement in the ships sinking, but rather his lack thereof in response to it.  Believing he was fired for safety concerns he raised following the disaster, Henthorne filed a claim with the BC Workers Compensation Board.  His employment was initially ordered to be reinstated, but the decision was reversed when the employer appealed.   The Supreme Court dismissed Henthorne’s appeal on the basis that his detailed list of safety concerns were all deemed to be “red herrings” – that is, they had no relevance to the inquiry into the Queen of the North.  Essentially, Henthorne prioritized his personal concerns and neglected his duty to assist with the workplace investigation.

In Ontario, much like in BC, workers are protected from dismissal, should they raise concerns about health and safety violations.  This case involved two mutually exclusive issues: (1) the negligence involved in the sinking of the ship and the subsequent investigation and (2) the health and safety concerns raised by Henthorne.  Ironically the concerns Henthorne raised ended up being the reason he was fired…just not for the reasons he anticipated.