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.