Can an employer simply sweep sexual harassment complaints under the rug?
And can you be fired for making the complaint, or because of your gender?
A recent Ontario Court of Appeal case, Doyle v. Zochem Inc., confirmed that a reasonable, impartial and thorough investigation is necessary when a complaint of sexual harassment in the workplace is made. Also, it reinforced that an employer must act in good faith when terminating an employee.
The case was on appeal from a Superior Court of Justice decision, the issue being whether the moral damages ordered at trial – $60,000 – should be reduced to $20,000, given the alleged overlap with the damages award flowing from the sexual harassment ($25,000 pursuant to the Human Rights Code). The latter award, in addition to the ten months in salary awarded as reasonable notice, were not at issue on appeal.
The case concerned Melissa Doyle, who was the plant supervisor and health and safety coordinator at Zochem, a company that produces zinc oxide. She worked closely with the plant maintenance manager, who sexually harassed her, both physically and verbally, on a regular basis, including: making sexually explicit comments, referring to her breasts, and inquiring about her sex life. After some of these incidents, Doyle stated that she felt like “a piece of meat”. She was the only woman who worked at the plant.
Management was aware of the issues between Doyle and her manager, and made a decision to terminate her employment without cause; Zochem regarded the manager as a key employee. Just before her dismissal, Doyle had made a complaint of sexual harassment against the manager. However, the investigation of the complaint was cursory at best, and gave no opportunity for Doyle to respond. She was terminated in July 2011, after nine years of service with the company.
The dismissal was a complete shock for Doyle, especially after she had just been told a few days prior that her job was not in jeopardy. She felt betrayed, and afterwards suffered from anxiety, migraines and sleep disturbances.
A court may award moral damages if it finds that a plaintiff has suffered emotional pain and suffering or mental anguish.
Justice John R. Belleghem agreed with the trial judge that the termination process had been mishandled by management at Zochem, describing it as “cold and brusque”, echoing the trial judge’s opinion that it was a “model of ineptitude”. Doyle’s complaint of sexual harassment – which had gone on for years – was minimised and swept aside. Her claim for short-term disability benefits was denied, and she was also pressured to sign a release without legal advice. On her last day of employment, someone took the car keys from her bag without permission and drove her car to the entrance of the plant, to speed up her departure.
Justice Belleghem stated that the manner in which the company dealt with her complaint of harassment and the circumstances of her termination were proper considerations for moral damages. Moral damages in the context of a dismissal were first elucidated in the Supreme Court of Canada decision Wallace v. United Grain Growers Ltd., which stated that in the course of a dismissal an employer should be “candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive”.
Justice Belleghem concluded that the trial judge’s assessment of moral damages at $60,000 in this case was appropriate, and dismissed the appeal to reduce it.
This is an important win for employees. It sends a warning to employers that they need to act in good faith when dismissing employees, and that any complaint of sexual harassment needs to be taken seriously. An attempt to dismiss an employee in the hopes that it will resolve a complaint of sexual harassment will be dealt with severely by the courts. Also, the decision states that a court can award damages under two different headings (here moral damages and damages as a result of the sexual harassment) even when the same conduct is considered, and there will not necessarily be an offset.
If you have any further questions about dismissals and sexual harassment in the workplace, contact our Employment Law Group.