Canadian Employment Law Today
Feb 1, 2017

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

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.

An Ontario company who 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, 48, was a plant supervisor for Zochem, a producer of zinc oxide in Brampton, Ont. Her duties involved supervising a group of workers producing zinc oxide from molten zinc in large furnaces. The 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 Zochem 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.

The work environment with her all-male employees often took on a “locker room” mentality. The maintenance supervisor, Bill Rogers, in particular, cultivated this environment 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 uncomfortable, 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. This behaviour in the workplace 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 previous job.

In 2010, Zochem retained a third-party company to do an employee survey on violence 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 superior, 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 meeting 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 engineer demeaned and insulted her and she left the meeting in tears.

The third-party company found the survey showed a “culture” of intimidation, bullying and verbal abuse with a history of violence, 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 termination letter with the intention of firing Doyle in a few days, told Doyle to stop being so emotional. Wrench did a cursory 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 office. However, she also bought the attempts of Rogers and others to downplay the situation 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 performance 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 termination 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. The consultant said three days wasn’t enough time, so Wrench extended the time for Doyle to consider her options 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 completed 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 disability (STD) and long-term disability (LTD) benefits. Zochem requested a medical report and determined Doyle’s condition was a reaction to her termination rather than exacerbation of a prior condition, so it denied her STD claim.

Doyle sued for wrongful dismissal. Zochem then claimed after-acquired cause due to abuse of authority, alleging that Doyle at demanded a $10,000 loan from another employee when she refused to pay that amount for drapes that the employee got a deal for her on from a friend. Zochem also referred to Doyle’s borrowing of $2,000 from a contractor with whom she was friends as “extortion.”

The court found that it was clear Doyle experienced significant sexual harassment at work. She had no reason to make it up and she went through the proper channels to have it addressed. There was no dispute that the workplace environment — which was almost all male — involved sexual banter and crude behaviour. It was a fact that Rogers had sexual images and items in his office and was told to get rid of them and be careful of his behaviour. In addition, the third-party assessment indicated there was a culture of harassment, abuse and intimidation at Zochem.

The court also found Zochem didn’t try to fix the problem. It didn’t follow through on the recommendations that came out of the survey on violence and harassment and Doyle’s complaints weren’t taken seriously.

Instead of properly dealing with the harassment Doyle suffered, Zochem decided she was the problem and terminated her employment to get rid of her, said the court. Though the company claimed there were performance issues, Doyle wasn’t told of any concerns and the real reason for the problems — related to production and health and safety training — were the result of team failings and a lack of company support. These couldn’t be laid at Doyle’s feet, the court said.

In addition, Zochem’s attempt to bring up after-acquired cause fell short. The $10,000 loan from another employee was in fact that employee’s demand for $10,000 for drapes that he agreed to get for Doyle for a $2,000 deal. When the employee told Doyle he then wanted $10,000, she refused to pay. Zochem’s extortion allegation referred to a loan from the contractor friend who said she didn’t need to pay him back.

The court found Doyle’s 20 years of experience as a supervisor, nine years of service with Zochem, and the importance of her position made her deserving of 10 months’ notice of dismissal. The court added another $60,000 in moral damages to this, as it found Zochem’s treatment of Doyle in her dismissal — including false allegations of poor performance, demanding the release, and taking a month to pay her statutory severance pay — was in bad faith.

The court also found Doyle’s rights under Ontario’s Human Rights Code were seriously infringed when Zochem failed to deal with Doyle’s sexual harassment complaint. Doyle was entitled to $25,000 in damages for breach of her human rights, said the court.

In total, Zochem was ordered to pay Doyle 10 months’ pay and pension earnings in lieu of notice minus termination and severance pay already deducted, plus $85,000 in moral and human rights damages.

For more information see:

Doyle v. Zochem Inc., 2016 CarswellOnt 19295 (Ont. S.C.J.).
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