Rehiring former employee previously fired for harassment

Employers must account for the effects of past misconduct on existing employees
By Brian Johnston
|Canadian Employment Law Today|Last Updated: 07/16/2019

Question: If an employee is terminated for harassing another employee and years later the harasser applies for a job with the same employer, does the employer have to consult with the victim before rehiring the harasser?

Answer: Employers do not have to consult with the victim, but consultation would help to mitigate a substantial risk of being found liable for constructive dismissal by re-hiring the harasser.

The recent Colistro v. Tbaytel Ontario Court of Appeal decision centered on a mid-sized company’s decision to re-hire an executive who had been dismissed for sexual harassment a decade prior. The court held that the single act of re-hiring the harasser constituted constructive dismissal of his former victim, despite attempts made by the company to accommodate the victim and the significant intervening time between the harasser’s termination and re-hire.