Canadian Employment Law Today

EMPLOYERS are coming under more scrutiny than ever before when it comes to protecting employees from harassment and discrimination. Behaviour that used to be accepted or swept under the rug in the workplace — such as sexually-charged or suggestive comments, racy photos, unwanted touching or propositions — are no longer tolerated. Employers who allow this type of behaviour run the risk of violating increasingly strict legislation. For employers in industries where workplaces are traditionally male-dominated or have a certain rough culture, this can be a particularly difficult challenge. But it can also mean when harassment happens, it can be that much more serious — as can ill-advised attempts to ignore the problem. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: SEXUAL HARASSMENT Employer exacerbates harassment with bad faith dismissal Company avoided dealing with culture of harassment and intimidation in its workplace by getting rid of complaining worker BY JEFFREY R. SMITH A n Ontario company who re- sponded to a worker's sexual ha- rassment complaint by firing her must pay her 10 months' pay plus another $85,000 in moral and human rights damages, the Ontario Superior Court of Jus - tice has ruled. Melissa Doyle, 48, was a plant supervi- sor for Zochem, a producer of zinc oxide in Brampton, Ont. Her duties involved super- vising a group of workers producing zinc oxide from molten zinc in large furnaces. e production facility required constant maintenance to ensure specifications were met and workers remained safe. All of the workers Doyle supervised were male. Doyle also took on the role of health and safety co-ordinator at the plant to help Zo - chem develop compliance procedures for ISO accreditation. She did well in this role and Zochem had a solid safety record while she was the co-ordinator. e work environment with her all-male employees often took on a "locker room" mentality. e maintenance supervisor, Bill Rogers, in particular, cultivated this envi - ronment with large photos and calendars of scantily-clad women in his office. Doyle needed ongoing co-operation with Rogers in the day-to-day operation of her group, so she had to act like "one of the boys" with him, such as laughing at his jokes, engaging in sexual banter, and acting embarrassed about his lewd comments. Because Rogers was close to the chief engineer, Doyle felt she couldn't complain about the situation. Other employees also made Doyle un - comfortable, as one tried to give her a bag of pornography tapes and her car was keyed after she refused to take them. She was also called names by some individuals in the front office. is behaviour in the work - place was particularly difficult for Doyle as she had developed clinical depression after being date raped as a teenager. She was also sexually harassed and assaulted in her pre- vious job. In 2010, Zochem retained a third-party company to do an employee survey on vio- lence or harassment issues in the workplace so it could develop and implement policies according to Ontario's anti-harassment and violence law, Bill 168. Doyle reported the harassment she was experiencing in her job with the hope it would solve her problems. She also decided to confront Rogers, who stopped making comments. Her own supe - rior, the production manager, heard about the situation and asked about it, and she told him things seemed to have resolved and not to pursue the matter. However, before long the harassment resumed and Rogers started refusing to give her the necessary work she needed to do her job well. At a production meet - ing on July 14, 2011, Doyle asked the chief engineer to intervene so Rogers would help remedy some workplace safety issues. However, both Rogers and the chief engi - neer demeaned and insulted her and she left the meeting in tears. e third-party company found the sur- vey showed a "culture" of intimidation, bul- lying and verbal abuse with a history of vio- lence, and recommended a training plan for Zochem to meet its obligations under Bill 168. However, Zochem didn't follow the recommendations or implement training. Employee terminated after harassment complaint Doyle reported everything to Stephanie Wrench, the assistant general manager. Wrench, who had already prepared a ter- mination letter with the intention of fir- ing Doyle in a few days, told Doyle to stop being so emotional. Wrench did a cur- sory investigation of Doyle's complaints — Rogers denied all of Doyle's sexual harassment allegations and said it was Doyle who often made sexually-charged comments and bought the racy calendars for his office. Rogers also said she often cried, but he considered that to be "her normal way." He denied being aware of her depression and claimed that he told Doyle "if I ever say anything that offends you or you feel is out of line to make sure you say something to me about it so it does not happen again." Wrench sent Rogers a short letter to warn him against engaging in workplace chat or joking that could be construed as harassment and to remove the calendars and other sexual paraphernalia from his of - fice. However, she also bought the attempts of Rogers and others to downplay the situ- ation and determined Doyle's complaint didn't have merit. On July 19 — five days after Doyle's complaint — Wrench terminated Doyle's employment, telling her the company was "making a change." Wrench mentioned there were some performance issues — such as production problems and a failure to carry out health and safety training — but Doyle hadn't been warned of any per - formance problems. Doyle was asked to sign a final release in order to receive six months' salary, but she said she wanted to think about it. Wrench said if Doyle didn't sign it, she would only receive the statutory minimum termina - tion payment. She was then given three days to consider the termination package and escorted out without being allowed to go back to her office. Zochem didn't have a human resources department, so it utilized the services of an HR consultant. Wrench told the consultant about Doyle's sexual harassment complaint and her impending termination. e con -

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