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How Not to Investigate a Harassment Complaint ?br>Bernier v. Home Hardware
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Home Hardware responded quickly, bringing in Don Kirck, a manager with 26 years experience from head office in Ontario, to conduct an investigation. After speaking with 3 employees and Ms Bernier, Mr. Kirck met with Mr. Elgert, a 17-year employee of Home Hardware, and informed him that sexual harassment allegations had been made against him.Elgert was immediately suspended, led off site and not permitted to take any of his belongings with him.
Mr. Kirck was confident that he had his man, going so far as to tell Elgert’s son, who also worked at the Distribution Centre, that he was 100% sure of Elgert’s guilt in the matter.
If, at first glance, this sounds like a company taking its obligations to provide a harassment-free workplace seriously, and responding quickly and effectively to an incident of unacceptable conduct from one its supervisory staff, consider the following facts and whether they would raise alarm bells for you.
The jury in Mr. Elgert’s wrongful dismissal case clearly did not feel he had been treated fairly. They characterized Home Hardware’s conduct in terminating Mr. Elgert as harsh, vindictive, reprehensible, malicious and extreme. They rejected the allegations of sexual harassment made by Ms Bernier. They awarded Mr. Elgert 2 years salary in lieu of notice, $200,000 in aggravated damages, and $300,000 in punitive damages. As well, they awarded him $60,000 in damages from Ms Bernier and her friend for defamation.
On appeal, this was reduced to 2 years salary in lieu of notice and $75,000 in punitive damages. The Court of Appeal ruled that Mr. Elgert did not present any evidence of mental distress, and therefore set aside the award for $200,000 for aggravated damages. However, the Court also kept open the possibility that aggravated damages could be awarded where such evidence is brought forward.
The Court of Appeal also upheld the $60,000 defamation award against Ms Bernier and Ms Stengle, who the Court found had acted maliciously in lying about the sexual harassment. Given that all the parties in this case lived in a small town, such false allegations of harassment could be counted on to damage Mr. Elgert’s chances for other employment.
This case is a cautionary example of how not to conduct a workplace harassment investigation.
By virtue of his longstanding friendship with Mr. Bernier, the father of the complainant, Mr. Kirck should have been immediately ruled out as an investigator. For the evidence in a case to withstand scrutiny, which it sometimes must do when one of the parties takes the matter to court, the investigator, especially if he or she is another employee, should be as neutral a party as possible. Mr. Kirck’s friendship with the father of the complainant would suffice to rule him out as an investigator in this case.
Moreover, regardless of Mr. Kirck’s friendship with the complainant’s father, the investigation he conducted was slapdash and devoid of procedural fairness, and thus easily challenged in court. Mr. Kirck refused to disclose to Mr. Elgert the details of the allegations against him, and gave him no opportunity to respond in his own defence, a clear abuse of process. Moreover Mr. Kirck spoke to only three people, two of whom had no direct evidence to offer. Finally, there was the troubling disappearance of Mr. Elgert’s belongings from work, (which he had not been allowed to take with him when he was escorted off the premises), which may have contained evidence that would help to exonerate him.
Taken together, these reveal an investigation more designed to confirm the investigator’s predetermined conclusion than to establish what actually occurred.
Where an employer seeks to investigate a complaint in-house, it should seek to ensure that the person called upon to investigate has some degree of training in investigation and is familiar with basic notions of procedural fairness. For example, the person accused must be made aware of all the allegations against him or her, and be given an opportunity to respond in full to them. Also, there should be a written record of all interviews conducted, and all parties interviewed should be asked to sign their statements. The investigation results should be submitted in a written report. As well, the parties should also be given an opportunity to make submissions in response to such a report.
As this case demonstrates, the investigator, regardless of whether he or she comes from inside the company or is a third party, should have no prior personal relationship with the parties. The investigator should also keep an open mind regarding the allegations, including the possibility that they were brought forth in bad faith, as was the case with Ms Bernier and Ms Stengle.
Employers need to ensure that they have clear and easily accessible policies on harassment, including procedures for filing complaints, for responding to them, and for investigating them. Finally, if an employer is in any doubt as to whether a complaint can be handled in house, an investigator from outside the company should be brought in, to ensure objectivity and fairness. Had Home Hardware done this, they would have saved a great deal of money and distress.
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