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Employers should have well-published harassment policies

One note of clarification: The cases I write about are rarely my own but rather reported cases. Some people assumed that this article was about a local cheese manufacturer. That case was about a cheese factory a long way away from Hamilton.
 
Parental guidance is advised for this article.
 
A man we will call Jeremy worked on the day shift at a cheese factory for 16 years. His supervisor was a friend s who invited Jeremy to participate in a three-way sexual encounter with him and his wife. Jeremy complied. We can’t tell from reading the judgment who got the most attention in that session but apparently the supervisor’s wife did not get enough. Jeremy noticed that she was seeking out extra marital relations on an adult website. 
 
One night he was having drinks at the bar with another co-worker and blabbed about the three-way session and the supervisor’s wife’s internet activities.
 
As these things go, of course the co-worker blabbed that around the plant and when Jeremy’s supervisor found out he was angry. Apparently he wasn’t angry about Jeremy talking about the three-way but he was angry that Jeremy didn’t tell him right away that is wife was seeking extra marital relationships on the internet.
 
For some bizarre reason, the employer decided to issue Jeremy a disciplinary warning for this disclosure and he was transferred to the night shift.
 
But that’s not why Jeremy ended up in court. By the time he got to the night shift, the whole plant had heard the story and started to harass him.  His old supervisor was now separated and was dating a woman on a different shift. Jeremy’s night shift colleagues joked repeatedly if he would be getting involved in a three-way relationship with the new couple. When his new supervisor heard Jeremy being harassed in the cafeteria one night, he was amused.
 
Jeremy complained to his supervisor repeatedly and each time the supervisor told him that his colleagues would lose interest in ridiculing Jeremy if Jeremy simply stopped showing his irritation at the comments.
 
Eventually the night shift supervisor did tell two of his colleagues to stop picking on him. Gossip dies hard in any workplace and within a year, his co-workers were questioning Jeremy’s sexual orientation and suggesting that he was carrying on a relationship with a male management employee. Jeremy complained again to his new supervisor and told him that he was not prepared to put with these derogatory comments. He told his boss he wanted to file a written complaint. The boss told him that if he did he was on his own, that it might lead to his termination and that he should seek a transfer if he was going to complain about his fellow workers.
 
The harassment continued until Jeremy went off sick. He disclosed the entire history to the plant nurse and the employer did eventually undertake an investigation of sorts. All they did, however, was talk to a few other managers. They didn’t talk to the four co-workers who had been harassing Jeremy or anyone else who might have heard something.
 
Before he came back from his sick leave, Jeremy took the position that he had been constructively dismissed as a result of the failure of the employer to protect him from harassment in the workplace; he had been terminated without anyone saying the words.
 
The judge agreed. The judge stated, “I am satisfied on the above evidence that the Plaintiff was harassed repeatedly in the workplace with degrading, impolite and derogatory comments by a number of his fellow employees. On a balance of probabilities, I am satisfied that those comments were unwelcome and created, over time, a feeling to the  Plaintiff of being unwelcomed, degraded, the subject of contempt and under attack while at work.”
 
The cheese maker tried to defend itself by saying that they had a published policy on harassment and Jeremy had not followed it by failing to file a written complaint. The problem with that argument is that Jeremy’s shift supervisor is a member of management and he should have taken the situation seriously and done something about it immediately. Jeremy was being told by his boss that he might get fired and that he would not have his support if he filed a written complaint.  Given that management had circled the wagons and disciplined Jeremy for a personal disclosure at a bar unrelated to work, it was not a surprise that Jeremy thought filing a formal complaint would get him nowhere.
 
Cases where employees successfully claim that they have been constructively dismissed as a result of being bullied in the workplace are rare. They are impossible if the employee doesn’t bring it to management’s attention in some way. If you think you are being harassed or bullied in the workplace, while talking is a good start, if things don’t get fixed, put your complaints in writing.
 
Jeremy ended up being awarded 12 months’ pay in lieu of notice and the cost of the trial. He also collected about six months’ sick pay before he took the position he had been terminated.
 
Cases like Jeremy’s do not mean that everyone who feels picked on or unappreciated gets a severance package. Jeremy’s harassment was severe and prolonged and at least one member of management knew about it.
 
Employers should have well-published policies dealing with harassment issues and a clear complaint process. When harassment issues are raised, they should be taken seriously. The alternative can be expensive.
 
As published in the Hamilton Spectator, March 21, 2011
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com