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New Twist in Wrongful Dismissal for Sexual Harassment

Sexual harassment at the workplace is a difficult problem for HR managers to deal with.  It often involves an allegation by one employee against another employee, and sometimes there is no corroborating evidence: he says, she says.   When the alleged harasser is a superior, it takes courage for the victim to complain, and many don’t, choosing to just live with the harassment or else they quit.  An employee who does accuse her superior of sexual harassment is making a serious allegation, since it could lead to the dismissal of the harasser, create all sorts of other personal and reputational problems for him, and make it difficult for him to find new employment.  Many accused will fight back, deny the allegations, or argue that the harassment was not unwanted or that the victim engaged in the relationship consensually.

In short, it is an unpleasant situation for all involved.  In a recent decision called Ciardullo v. Premetalco Inc., an Ontario judge ruled that an employee who has sued his employer for wrongful dismissal after being fired for sexual harassment has the right to select the accuser as the employer’s representative in the discovery process.  This is a decision interpreting the Rules of Practice.  Rule 31.03 of the Ontario Rules provides:

Rule 31.03 of the Rules provides, in part:

31.03  (1)  A party to an action may examine for discovery any other party adverse in interest, once, …

(2)  Where a corporation may be examined for discovery,

(a) the examining party may examine any officer, director or employee on behalf of the corporation, but the court on motion of the corporation before the examination may order the examining party to examine another officer, director or employee; and

The plaintiff selected the women he was alleged to have harassed to be the employer’s representative.  The employer argued that this was inappropriate because the employee had no knowledge of the decision process leading to the dismissal, and it argued that the HR manager should be called instead.  The employer also argued that it would be ‘oppressive’ to force the victim of harassment to be subjected to discovery by the alleged harasser.

The Court rejected all of those arguments and ordered the alleged victim to appear for discovery.  The judge ruled: “ I agree with the Master that the evidence of Mrs. K. goes to the heart of the case.  One cannot escape the fact that the plaintiff will be required to meet Mrs. K.’s allegations that he sexually harassed her.”

This could become an important ruling in sexual harassment wrongful dismissal cases.  It means that women who complain about a superior harassing them must be prepared for the possibility of being examined for days about the allegations, in front of the alleged harasser.  Do you think this might deter women from complaining?

Do you think this case strikes a fair balance between the rights of the dismissed worker and the interests of the victims of sexual harassment?

Thanks to Hendrick Nieuwland for the tip.

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3 Responses to New Twist in Wrongful Dismissal for Sexual Harassment

  1. Susan Reply

    August 23, 2015 at 12:35 pm

    I believe that the accused has the right to address the accuser in the presence of a legal or unbiased tribunal just as anyone accused of any act that is considered unlawful. The current law places too much onus on the alleged victim making it easy for disgruntled employees to accuse employers or fellow employees knowing their accusers have no way to defend themselves. In addition the current law is so broad that mediation and mitigation guidelines need to be put in place in order to protect and provide both the accused and the victim a justified outcome.

  2. Sunira Reply

    June 2, 2016 at 3:43 am

    More often than not plaintiffs examine management or executives of their ex-employers. Given the post-Ghomeshi world we live in the decision in this case will have an even greater chilling effect (if that were possible) on women coming forward with complaints at work. The defendant’s use here of Rule 31.03 is a clever tool to put the plaintiff’s feet to the fire early on in litigation and to assess her grit. While the idea of hauling a plaintiff into an examination as her employer’s representative is unfair and likely traumatic in some circumstances, it is undoubtedly true that she will have much of the relevant information to be examined on and in my view a proper representative of the defendant. The defendant, is, after all, entitled to a clear idea of the case he has to meet.

  3. Debbie Reply

    June 7, 2017 at 8:23 pm

    I was sexually harassed and harassed at work, the harassment was on a daily basis.I reported it many times .Finally when I threaten to get a lawyer and the labour board involve the manager called the person into the office and he admitted to all of it. He was given a written warning . I on the other hand was terminated .I have no problem facing this company or the person who did this to me for 9 mths.

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