An adjudicator’s decision to reverse the firing of a New Brunswick probation officer for sexual harassment because of the “barn-like” atmosphere of sexual banter and gestures amongst employees in his office is a caution for employers that all relevant circumstances have to be considered when dealing with workplace harassment allegations, says Toronto employment lawyer Lai-King Hum.
“This decision shows that while employers need to confront sexual harassment allegations with alacrity and protect victims of sexual harassment, they also need to be aware that the rights of the person accused of sexual harassment need to be protected as well,” she tells AdvocateDaily.com.
“Employers ought not to jump to conclusions before the end of an investigation, and take into consideration all factors that might mitigate behaviour — otherwise they could also face significant financial consequences.”
Hum, principal of Hum Law Firm, comments generally on the outcome of Canadian Union of Public Employees, Local 1418 v New Brunswick (Justice and Public Safety), 2016 CanLII 50052 (NB LA). In this matter, adjudicator Robert Breen found the decision to fire Kevin Kelly was too severe a penalty. Instead, Breen said Kelly should be suspended for five months without pay and reinstated to a location other than the Moncton office.
The adjudicator also called for Kelly to be compensated for lost wages and benefits for the period beyond the five-month suspension and then placed on a temporary absence, with pay, until his employer finds an acceptable alternative position for his re-entry, at his last pay step, in the department. He called for Kelly to take sensitivity training and/or an education course that addresses workplace appropriateness, at his own cost.
The adjudicator also urged the department “to no longer address workplace sexual harassment programs as just ‘in the works,’ but programs settled upon with established dates for implementation, and this specifically for its Moncton probation office.”
Among the allegations, Kelly was accused of grabbing a co-worker’s backside several times during a staff party and grabbing the backside of a co-worker’s girlfriend. He was also seen by female staff in his underwear while undressing in his office.
His union, the Canadian Union of Public Employees (CUPE), Local 1418, held that almost all the allegations had not been brought to Kelly’s attention until after an external investigation was launched. CUPE also said Kelly’s firing was too severe a penalty because of the general lack of sensitivity and harassment training in the Moncton office.
Hum notes the Kelly decision comes at a time when sexual harassment awareness and the impact on victims is gaining more recognition. There have been larger awards at the Human Rights Tribunal for such cases recently.
There was also the highly publicized firing of Jian Ghomeshi from the CBC amidst sexual assault allegations, for which he was later found not guilty in court.
In addition, Hum points to how the Ontario government has responded with Bill 132, the Sexual Violence and Harassment Action Plan Act. Coming into effect on Sept. 8, the changes will place additional obligations on employers to address and prevent incidents of “workplace harassment,” for which the definition was expanded to expressly include sexual harassment, through amendments to the Occupational Health and Safety Act (OHSA).
She explains the changes require employers to establish a clear complaint procedure and to investigate all incidents and complaints of workplace sexual harassment. The results of such investigations and any corrective action must also be provided to the complainant; and, most importantly, OHSA inspectors will be able to order employers to engage an independent external investigator to conduct the investigation and provide a report, at the employer’s expense.
The purpose is to prevent sexual harassment, and impose positive obligation on employers to take all reasonable measures once a complaint is made or the employer becomes aware of any incidents of sexual harassment, Hum says.
“In this climate, some employers may err on the side of quickly terminating employees accused of sexual harassment rather than face potential liability for failing to deal with workplace harassment, which is what the employer in the Kelly case seems to have done,” she says.
Hum deals with workplace harassment allegations from many different perspectives. She has been hired to investigate incidents of workplace harassment. As well, she represents and advocates for complainants who suffer sexual harassment and bullying conduct in the workplace. She has also represented men falsely accused of sexual harassment in the workplace, or not accused in good faith, who were eventually cleared, but not before being devastated by the accusations.
Hum says the New Brunswick decision highlights an important message for all employers.
“The overzealous pursuit of these types of allegations, without due process and taking into consideration context and the atmosphere of the workplace/university environment can be dangerous,” she says. “At the same time, just because there has been a history of rowdy behaviour does not excuse that kind of conduct when a new person comes into the workplace and makes it known that the behaviour is offensive.”