HRPA – Barrie ChapterNovember 24, 2015

Presented byStuart E. Rudner

“The Ghomeshi Scenario”: Responding to

Allegations of Harassment

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Headlines You Don’t Want“CBC management ignored warnings in

Jian Ghomeshi affair”“Bungled Jian Ghomeshi

investigation playing out at taxpayers’ expense”

“Jian Ghomeshi’s quiet accomplice: Why the CBC must be investigated, too”

“Two CBC execs on leave of absence after Jian Ghomeshi investigation”

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Risks Bad PR Legal liability

– Wrongful dismissal– Punitive damages– Moral damages– Infliction of emotional distress

Amounts are increasing

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Responding to allegations Do not ignore Act expeditiously Check policy

– Requirements for investigation / timing / people involved Review policy now to ensure not overly

restrictive Consider other obligations (i.e.

union)

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Responding to allegations Notify respondent

– Warn re interference Be mindful of complainant and

accused– Ensure safe work environment– Consider referral to EAP– Interim suspension / transfer?

Do not promise lack of repercussion

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Hallmarks of Good Investigation

Unbiased Thorough Timely Well documented Defensible conclusions Recommendations & Action items

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Conducting investigation Internal vs external

– Seriousness of allegations– Sensitivity of issues– Appearance of bias– Expertise– Availability– Cost

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Conducting investigation Obtain all necessary information

from complainant Do not begin with a conclusion or

investigate for purpose of proving misconduct

Do not make promises of confidentiality you cannot keep– But promise reasonable efforts

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Witnesses Consider order Do not promise confidentiality

– Require that they do Warn against interference No reprisals for participation Inquire about other witnesses Obtain documents

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Witnesses Provide respondent meaningful

opportunity to respond to allegations

Follow up if there is new information (can interview same person twice)–confront

Return to complainant with new information, contradictory evidence

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Preparing a Report Background /

allegations Mandate Process Documents

Witnesses

Policies Evidence Conclusions Recommendati

on

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Report Assess credibility

Compare to evidence What has “air of reality”?

Don’t cop out – reach a conclusion Ensure it is supportable

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After the Report Advise complainant and respondent

of outcome Take action based upon findings

– Discipline– Mediation– Training / counselling / courses– Apology– New policies / training for others

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The Importance of the Investigation

Investigate first Ensure fairness, objectivity,

thoroughness Give opportunity to respond Often, employee response is

critical factor in determining appropriate discipline

Vernon v. British Columbia

30 year employee accused of bullying/harassment

Known as “The Little General” Offensive language, racial and other

inappropriate comments

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Investigators:– Pre-judged– Attacked accused and those who

supported her– Misled decision-makers in report

Result– 18 months’ notice– $35k in “The Damages Formerly

Known as Wallace”– $50k punitive damages

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Dismissals 2 types: With cause or

without cause

If with cause, no further obligation to employee

Otherwise, need to assess employee’s entitlements to

notice/pay in lieu/severance

No “near cause”

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“Capital Punishment of Employment Law” Based on McKinley v. B.C. Tel., 2001, Employer must

prove:

1. that the alleged misconduct took place, and

2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances

Proportionality is guiding principle – “punishment must fit the crime” bearing in mind all circumstances

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The Contextual Approach Employer must consider all

circumstances, not just alleged misconduct– Length of service– Disciplinary history– Nature of position– Response to allegation – Mitigating factors

Same set of facts can yield different results

Off-Duty Conduct Generally, what you do on your time is

your business Unless

– The conduct renders the employee unable to perform his duties satisfactorily.

– The conduct interferes with the efficient management of the operation or workforce.

– The conduct leads to a refusal or reluctance of other employees to work with him.

– The conduct harms the general reputation of the Employer, its product or its employees.

Implementing PoliciesA. Have a policyB. Use clear and unambiguous

languageC. Keep the policy up to dateD. Publicize the policyE. Make employees aware of concernsF. Ensure supervisors and managers

are aware of the policy and how to monitor

G. Monitor behaviourH. Discipline violators

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Without Just Cause Notice of Dismissal or Pay in Lieu Two sources of entitlement

– Employment Standards Act / Canada Labour Code

– Common Law Can contract out of common law

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Common Law: The Length of Notice

Requirement: “reasonable” notice of dismissal

The Bardal Factors 1) Length of service2) Age3) Position / Character of Employment4) Availability of Similar Employment

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What is “reasonable”? No “rule of thumb” or direct 1:1

relationship between years of service and months of reasonable notice

Beware the short-term employee

Other factors– Inducement– Time of year– dishonesty

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The Changing Times End of mandatory retirement,

people working longer Wrongful dismissal claims by workers in 70s and 80s!

Recent decision:I do not think there is a place in this

social reality for an automatic presumption that persons should or would naturally retire on reaching

senior age.

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The Changing TimesDi Tomaso v. Crown Metal Packaging Canada LP:

There is recent jurisprudence suggesting that, if anything,

(position/character of employment) is today a factor of

declining relative importance.

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Obligations During Notice Period

Default: all compensation– Base salary /

wage– Commission– Bonus– Medical /

dental– LTD / life

– Car allowance

– etc

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Without Cause: Options Working notice

– must allow opportunity tolook for new employment

Salary & benefit continuance– With or without clawback

Lump-sum Combination

Can you package someone out instead of investigating misconduct?

Recent decision suggests employers may not be entitled to terminate without cause in order to 'side-step' the duty to investigate

Ontario Superior Court of Justice:“it is a triable issue whether the employer adopted the procedure intentionally to side step the criteria for fair treatment of an employee against whom cause is alleged”

When an employee is alleged to have engaged in misconduct, employers are expected to investigate before taking disciplinary action

Law is unclear at this point

Employment Agreements Use them! Do it properly

– Before there’s already an agreement– With consideration– Explained and understood– Independent legal advice

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Termination Clauses Enforceable if done properly Avoid uncertainty of “reasonable

notice” & reduce dismissal costs Use clear language Don’t go below employment

standards Address probation period

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Stuart E. Rudnersrudner@rudnermacdonald.com416.640.6402 or 905.530.2484

Web: www.rudnermacdonald.comTwitter: @CanadianHRLaw

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