Canadian Employment Law Today

no "hard and fast rule" about whether an employer must issue a warning to the al- leged sexual harasser, and found that in this case the harassment was so severe, a warn- ing was not necessary prior to termination. e golf course did not have a harassment policy in place. Justice Hollins found fault with the golf course for not conducting an adequate investigation of the complaint, including a failure to interview the employ- ee. Notwithstanding this failure, however, this did not automatically "obviate a justi- fied summary termination." Justice Hol- lins concluded that the harassment was so severe that termination of the supervisory employee for just cause was justified. Best practices e earlier leading Alberta authority, Leach v. Canadian Blood Services, suggests that, in terms of best practices, in the face of sexually harassing behaviour towards one of its employees, the employer should: • Immediately notify the alleged harasser about the complaint. • Give the alleged harasser a copy of the company's harassment policy to review. • Give the alleged harasser time to consider his position before the next meeting with a representative of the employer to dis- cuss the complaint. • Give the alleged harasser an opportunity to respond to the complaint. • Invite the alleged harasser to have legal representation at the outset. • Keep detailed minutes of all meetings with the complainant and alleged harasser. Adoption of these steps will go a long way to establishing that procedural fairness was given to the alleged harasser in the event of termination of the harasser's employment and a wrongful dismissal suit. In addition to the above, we also recom- mend that employers: • Develop and regularly update a written policy that defines and prohibits sexual harassment and sets out the conse- quences up to and including dismissal for cause. • Include the harassment policy as part of the employee handbook. • Clearly identify to whom complaints of sexual harassment should be reported. • Follow all steps as laid out in the harass- ment policy and support the victim throughout the process. is will be es- pecially important if the decision is to discipline but not terminate. e em- ployer will have to take steps to ensure that the victim feels safe going forward including considering whether a trans- fer of one or the other of the employees is appropriate. • Depending on the severity of the com- plaints or the pervasive nature of the issue, consider whether an external in- vestigation would be beneficial. • Conduct a risk assessment to evaluate the current risks of sexual harassment in the workplace. e risk assessment should include an evaluation of the culture of the workplace and whether there is a culture that fosters or toler- ates harassing behavior. For larger or- ganizations, this should include assess- ments at an operations level, not just company-wide. • Put in place a prevention program, which could include giving workers training as to what constitutes sexual harassment, how to identify potentially volatile situations, and how to respond or intervene, including emergency re- sponse procedures, upon hiring and on an ongoing basis. Sexual harassment and sexual assault in the workplace (or anyplace) is abhor- rent and should be condemned. Perpetra- tors should be subjected to serious conse- quences and discipline up to and including dismissal. Victims must be heard and their experiences learned from. ey must be supported through the investigation pro- cess. eir experiences must not be mini- mized or invalidated even when there is conflicting evidence from the accused. Employers must have robust policies in place to deal with harassment and assault and need to follow them. In order for vic- tims of harassment or assault to feel free to come forward they need to have faith that there is a just system in place to deal fairly and compassionately with the complaint. However, the imperative to believe and support the accuser cannot overwhelm the requirement for employers to conduct fair and balanced investigations. ese are two imperatives and are not mutually ex- clusive. We have come to a societal reckon- ing that is long overdue. If we proceed with thoughtfulness and compassion, we will be able to address harassment complaints in a manner that supports the victim and pro- vides a just result for the perpetrator. For more information see: • Janzen v. Platy Enterprises Ltd., 1989 CarswellMan 158 (S.C.C.). • Halsbury's Laws of Canada – Discrimina- tion in Human Rights (2013 reissue) • Robichaud v. Brennan, 1987 CarswellNat 1105 (S.C.C.). • British Columbia Human Rights Tribu- nal v. Schrenk, 2017 CarswellBC 3506 (S.C.C.). • Watkins v. Willow Park Golf Course Ltd., 2017 CarswellAlta 1678 (Alta.Q.B.). • Leach v. Canadian Blood Services, 2001 CarswellAlta 173 (Alta. Q.B.). Canadian HR Reporter, a Thomson Reuters business 2018 May 23, 2018 | Canadian Employment Law Today CREDIT: MARTIN DE JONG/SHUTTERSTOCK ABOUT THE AUTHOR Michael Waite Michael Waite is an employment lawyer with Carbert Waite LLP in Calgary, advising employers and employees on various employment, disability, and human rights issues. He also practices commercial litigation, estate litigation, serious personal injury litigation, and civil fraud. He can be reached at (403) 705-3307 or waite@carbertwaite.com.

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