An unusual case was recently decided in the Yukon Court of Appeal (2013 YKCA 15). Juanita Wood, a Yukon Government employee who was accused of sexual harassment, sued for damages for defamation from the co-worker who had complained that she had sexually harassed him, and the personnel officer who dealt with the complaint. Defamation cases rarely arise in workplace harassment investigations.

Ms. Wood was an employee of the Yukon Government who was seconded to work in a management position for Selkirk First Nation. An employee of Selkirk First Nation who reported to Ms. Wood complained that she had sexually harassed him on two occasions. The personnel officer who was dealing with those allegations reported the alleged sexual harassment to "the appropriate people" at the Yukon Government.

The court found that while the accusations of sexual harassment could be defamatory as the statements were "capable of lowering the plaintiff's reputation in that community in the estimation of other reasonable persons," in these circumstances, the allegation of sexual harassment was protected by qualified privilege. The employee who made the allegation did so in the context of his employment and he made the allegation to managers who would have an interest in receiving that information. Ms. Wood said that the accusations were motivated by malice. If that had been the case, the defence of qualified privilege would not apply. The court found, however, that there was no evidence that the employee made the allegations maliciously.

With respect to the personnel officer, the court found that her reports of the sexual harassment complaint to the Yukon Government were also covered by qualified privilege. She had a duty to report the allegations and she reported to the appropriate people at the Yukon Government. Accordingly, she was also protected from an action for damages for defamation as there was no evidence that she had acted maliciously.

Proper Workplace Harassment Policies are Key

This case is a useful reminder that harassment complaints in the workplace, such as complaints of sexual harassment, should be dealt with under proper policies. The internal communication of those complaints should be restricted to employees or managers who are involved in the process and are required to have information about complaints in order to deal with them. The information should be kept confidential and not disseminated widely.

Employees who make harassment complaints are typically warned that these complaints are serious matters and that the employee must be truthful in making such a complaint. Employees should also understand that if they make a harassment complaint maliciously, they will not be protected by qualified privilege and could be sued for damages for defamation, in addition to any disciplinary sanctions that the employer may apply for a malicious complaint.

Employers could be vicariously liable for damages for improper dissemination of information after a complaint is received. In order to have the protection of qualified privilege, the complaint must be treated confidentially and disclosed only to those persons in the organization who must have knowledge of the complaint in order to deal with it. Appropriate policies for handling such complaints make it easy for the employer to establish who has a legitimate interest in having information about a complaint.