Worker fired while helping out with harassment investigation

You make the call
|Canadian Employment Law Today|Last Updated: 04/30/2019

This instalment of You Make the Call involves an executive assistant who was dismissed following harassment investigations related to top executives at her company.

The worker was employed as an executive assistant for Commissionaires Great Lakes (CGL), a security services provider in central and southwestern Ontario. She joined CGL in late 2015 on a three-month probationary period, but soon the CEO began raising concerns with her about her productivity. The worker had a probationary performance review that stated she needed to improve her priority setting and productivity. The worker reviewed the performance review document and signed it. At this point, she began sending work emails to her personal email account.

In early 2016, the worker made a booking error on a flight the CEO was to take and didn’t finalize hotel arrangements for a Commissionaire, so the CEO had to do it himself.

On March 5, 2018, the chair of CGL’s board asked the worker to help her with the logistics of internal harassment investigations into the conduct of GCL’s chief executive officer (CEO) and chief operating officer (COO). As part of her duties in this project, the worker had to obtain documentation, schedule witness and board meetings, maintain meeting minutes, and report any complaints relevant to the investigation to the chair of the board. In addition, she scheduled a meeting between disgruntled employees and the chair of the board to discuss the matter. Due to the sensitivity of the investigation, the worker didn’t mention any of it to the CEO and kept no records where he would see them.

After the internal investigation, the CEO requested that the board hire an external investigator to conduct a formal investigation, to which the board agreed. The worker wasn’t involved in the external investigation.

On March 16, the CEO didn’t know what the worker had been up to over the previous two days and when he asked she said she had covered for reception for half of each day as well as booked a lunch meeting and a train ticket for the board chair. However, when the CEO asked the receptionist how much time the worker had spent covering reception, it turned out to be only one to two hours each day.

Since the worker had been warned about improving her productivity, the CEO felt the time she had wasted when she claimed she had been covering reception was the final straw. He terminated her employment because she wasn’t showing improvement following her probationary performance review.

The worker filed a complaint with the Ontario Labour Relations Board alleging that she was terminated from her employment as a reprisal for her involvement in the harassment investigations.

You Make the Call

Was the company entitled to terminate McNabb’s employment for cause?

OR

Was the dismissal a reprisal and therefore wrongful?

If you said the worker’s termination was legitimate, you’re right. The Labour Relations Board found that there was no evidence the CEO was aware of the worker’s involvement with the harassment investigation when he decided to terminate her employment. The worker made sure there were no records of the investigation around where he could find them and didn’t tell him anything about it. If the CEO didn’t know about the worker’s involvement, it couldn’t have affected his decision to dismiss her, said the board.

In addition, it was clear that the worker was being performance managed through her probationary period. The CEO discussed his concerns about her productivity and gave her a formal review that indicated she needed to improve — before the worker’s involvement in the harassment investigation. The fact that the worker began sending work emails to her personal email account after the performance review showed that she was concerned about her job security and wanted any potential evidence from these emails if her employment was terminated — all before she was asked to participate in the investigations, said the board.

The Labour Relations Board determined that the worker’s termination had nothing to do with her involvement in harassment investigations against GCL’s CEO and COO and instead were for legitimate performance concerns about which she had been warned. The worker’s complaint was dismissed.

For more information see:

Mistry v. Commissionaires Great Lakes, 2019 CarswellOnt 3270 (Ont. Lab. Rel. Bd.).

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