Grievor awarded significant damages for failed harassment investigation
In a recent decision, a labour arbitrator recognized the impact of an employer’s failure to investigate workplace harassment and discrimination on the health and well-being of a unionized employee with a significant monetary award.
Background
In 2017 and 2018, the Toronto Metropolitan Faculty Association filed two grievances on behalf of a faculty member (the “grievor”) who alleged that her senior, male colleague, whose office was located next to hers, engaged in workplace harassment and discrimination towards her over an eight-year period.
The grievor had first raised concerns about the colleague’s rude comments and gestures and his undermining of her in meetings and over email to the employer starting in 2011, but an investigation in 2013 by the dean found no wrongdoing. The grievor then reported further concerns about discrimination and vandalism of her office to the employer. The employer conducted another risk of violence assessment and concluded that the risk of violence posed by the colleague was low. The grievor continued to raise concerns, including by filing an internal human rights complaint.
In 2015, the employer arranged for a workplace investigation into some, but not all, of the grievor’s concerns. The investigation concluded that some of the grievor’s allegations against her colleague were substantiated and the employer issued him a letter of warning. The employer did not advise the grievor about the findings or any corrective actions taken for at least eight months.
The grievor subsequently reported new concerns about being stalked by the colleague and similar allegations about vandalism. The employer again determined that the risk of violence posed by the colleague was low. The employer otherwise treated the grievor’s concerns as being covered off by the workplace investigation and took no further action.
The association took the grievances to arbitration, arguing that the employer had failed to protect the grievor’s health and safety and failed to investigate her concerns in accordance with the collective agreement, the Occupational Health and Safety Act (OHSA) and the Human Rights Code (Code). The issue before the arbitrator was not whether the grievor’s reports of harassment and discrimination were true but rather whether the employer had met its obligations in responding to the grievor’s complaints.
In light of the grievances, the employer decided to hold the grievor’s internal human rights complaint in abeyance.
The Arbitrator’s Decision
Arbitrator Elizabeth McIntyre found that the employer failed to meet its obligations to the grievor under the parties’ collective agreement, the OHSA, and the Code, by failing to conduct a harassment investigation into all of the grievor’s allegations, by failing to report the workplace investigation results and any corrective actions it had taken in a timely manner to the grievor, by failing to relocate the colleague’s office following the workplace investigation, and by holding the grievor’s internal human rights complaint in abeyance.
Regarding the failure to investigate, Arbitrator McIntyre held that the employer had a duty to investigate new occurrences even if they were similar to the grievor’s earlier allegations and given that the grievor had previously been subjected to harassment, the employer had an enhanced responsibility to consider subsequent reports of harassment. She also held that a violence risk assessment did not constitute an investigation from a harassment or discrimination lens of the same underlying events.
In addition to declarations regarding the employer’s breaches of the collective agreement, the OHSA, and the Code, Arbitrator McIntyre ordered the employer to pay the grievor $30,000 in general damages and directed the employer to review the grievor’s internal human rights complaint, which had been held in abeyance for three years at the time of arbitration.
The Award’s Significance
While each case must be decided on its specific facts, the grievor in this case was awarded a significant amount in damages – without an underlying finding of harassment or discrimination – largely in recognition of the mental distress arising from the employer’s failure to investigate her harassment and discrimination concerns.
You can read the decision on liability here, and the decision on remedy here.
Lawyers
Emma Phillips, Danielle Sandhu