Canadian HR Reporter

CANADIAN HR REPORTER February 6, 2017 EMPLOYMENT LAW 5 Jeffrey Smith Legal View For 25 years, The Annotated Canada Labour Code has been the authoritative resource labour relations professionals rely on to help them interpret and apply the Canada Labour Code. New in this edition • Commentary on the CIRB's interpretation and application of the Employees' Voting Rights Act • Case law and commentary on the Board's review of how union membership fees are paid in determining the strength of certifi cation applications, commentary on the duty of fair representation owed by employer representatives to their member companies, the rights of litigants to be represented by legal counsel at arbitration proceedings, and further explanation of how the "maintenance of activities provisions" of the Code will be applied • Cases offering insight into when "violence in the workplace" complaints must be investigated and the role of employee representatives in "refusal to work" complaints • Digests covering the noted 2016 Supreme Court of Canada judgment in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, 2016 CSC 29, which dealt with what constitutes an "unjust dismissal," as well as other cases dealing with issues of whether paternity leave can be sought, what constitutes the date of dismissal for s. 240 purposes, as well as consideration of the "arguably relevant" test for the production of documents New Edition The 2017 Annotated Canada Labour Code, 25th Anniversary Edition Ronald M. Snyder Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # 987131-65203 $167 Softcover approx. 1900 pages December 2016 978-0-7798-7131-5 Shipping and handling are extra. 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Employer exacerbates employee's harassment with bad faith dismissal An Ontario company that responded to a worker's sexual harassment 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 Justice has ruled. Melissa Doyle was a plant super- visor AT Zochem, a producer of zinc oxide in Brampton, Ont. e production facility required constant maintenance to ensure specifications were met and work- ers remained safe. All of the work- ers Doyle supervised were male. She also took on the role of health and safety co-ordinator. e work environment often took on a "locker room" mental- ity. In particular, maintenance supervisor Bill Rogers cultivated this environment with large pho- tos and calendars of scantily clad women in his office. Doyle needed ongoing co-op- eration 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 uncomfortable, and she was called names by individuals in the front office. is behaviour was particularly difficult for Doyle as she had developed clinical depres- sion after being sexually assaulted as a teenager. She was also sexu- ally harassed and assaulted in her previous job, which led to a legal settlement and therapy. In 2010, Zochem retained a third-party company to do an em- ployee survey on violence or ha- rassment issues in the workplace so it could develop and implement policies according to Ontario's anti-harassment and violence law, Bill 168. Doyle reported on the ha- rassment with the hope it would solve her problems. She also con- fronted Rogers, who temporarily stopped making comments but then resumed the harassment. He started refusing to give her the necessary work she needed to do her job well. At a production meeting on July 14, Doyle asked the chief engineer to intervene so Rogers would help remedy safety issues. However, both Rogers and the engineer belitted her and she left the meeting in tears. e third-party company found a culture of intimidation, bullying and verbal abuse, and a history of violence, and recommended a training plan for Zochem to meet its Bill 168 obligations. However, it didn't follow the recommenda- tions or implement training. Employee terminated Doyle reported everything to Stephanie Wrench, the assistant general manager. Wrench, who had already prepared a termina- tion letter with the intention of fir- ing Doyle in a few days, told Doyle to stop being so emotional. Wrench did a cursory investi- gation of Doyle's complaints and Rogers denied all of Doyle's allega- tions and said it was she who often made sexually charged comments and bought the racy calendars. Rogers also said she often cried, but he considered that to be "her normal way." He denied be- ing aware of her depression and claimed he told Doyle she should let him know if he caused offence. Wrench sent Rogers a short let- ter 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 office. However, she also believed the others when they downplayed the situation, and de- termined Doyle's complaint didn't have merit. On July 19, 2011 — five days after the complaint — Wrench terminated Doyle's employment, telling her she wasn't needed and the company was "making a change." Wrench mentioned there were some performance issues but Doyle hadn't been warned of any problems since 2007, when she had been trying to get off her depression medication. Doyle was asked to sign a final release to receive six months' sal- ary, and was told if she didn't sign it, she would only receive the stat- utory minimum termination pay- ment. She was given three days to consider the termination package or seek legal advice. An HR consultant said three days wasn't enough time, so Wrench extended the time to one week. Wrench later testified the severance payment was negotiable, but there was no evidence this was indicated to Doyle. Doyle didn't sign the release and Zochem com- pleted payment of the statutory minimum amount a month later. Doyle felt "betrayed, abused and upset" and saw a psychiatrist. She was diagnosed with a major depressive disorder and anxiety that would cause difficulties with performing the duties of her job, so she applied for short-term dis- ability (STD) and long-term dis- ability (LTD) benefits. Zochem requested a medical report and determined Doyle's condition was a reaction to her termina- tion rather than exacerbation of a prior condition, so it denied her STD claim. Doyle sued for wrongful dis- missal. Zochem then claimed after-acquired cause due to abuse of authority, alleging Doyle had demanded a $10,000 loan from another employee and said her borrowing $2,000 from a contrac- tor was "extortion." e court found it was clear Doyle experienced significant sex- ual harassment at work. She had no reason to make it up and she went through the proper chan- nels to have it addressed. ere was no dispute the workplace en- vironment involved sexual banter $60,000 > pg. 6

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