After his dismissal in September of 2005, a mechanical engineer, head of a floating maintenance team since 1998 at Mittal (the employer), filed two complaints pursuant to An Act respecting labour standards, (the “Act”) one for wrongful dismissal and the other for psychological harassment. The Commission des relations du travail (CRT)1 allowed both.
For the purposes of this issue of the newsletter, we will focus chiefly on the harassment issue. It is worth noting, however, that the CRT held that the employer had not discharged its burden of demonstrating that it had met the conditions that would have allowed it to prove sufficient cause for dismissal. In light of the fact that, in this case, the action taken was administrative in nature and based on “unsatisfactory attitude and performance”, the CRT emphasized that the employer was required both to prove the alleged shortcomings and to ensure that (1) the employee was aware of the company’s policies and expectations of him; (2) he had been informed of the shortcomings; (3) he had been provided with the requisite support to overcome these shortcomings and meet predetermined objectives; (4) he had been afforded a reasonable time period to adapt; and (5) he had been warned of the risk of dismissal absent any improvement.
In September of 2004, a member of the complainant’s floating team complained of an unpleasant smell in the vicinity of a cleaning tank for pieces of equipment for one of the factories. The problem was apparently due to the lack of ventilation in the adjacent bathroom. In December, the problem had still not been resolved. The floating team staff issued a safety report which was submitted to the Health and Safety Committee. A senior plant coordinator had the repairs carried out and notified the complainant by e-mail that the work had cost in excess of $18,456 and that this amount would be applied against his budget. This was not true, but several coordinators and supervisors sent e-mails to tease the complainant and lead him to believe that the repairs had in fact cost $18,000, and that the Vice- President wanted an explanation from the complainant. The bad joke lasted for several days, until December 23, when the complainant learned through a co-worker that the whole thing was a practical joke. He was in a state of shock, broke out into tears and wanted to leave the factory. He sent an e-mail to the persons involved to explain the extent to which this series of events had shaken him, causing him even to have a car accident.
On December 28, the Director of Maintenance wrote him to apologize for the inconvenience the bathroom incident had caused him. He told him that one must have a sense of humour and know where to draw the line. The complainant had a terrible holiday season, believing as he did that the Director of Maintenance wanted to get rid of him.
During the following month of April, the Senior Vice-President was informed and provided evidence of the bathroom incident by the complainant, who also requested a meeting. In May, since he had not received a reply, the complainant followed up with the Senior Vice-President, adding that he had heard that some people had been mocking him over the Holidays. Still, he was not granted a meeting.
In August, an incident arose during which the complainant’s supervisor lost his cool, started swearing, raising his voice and shaking his fist to the complainant’s face. On September 1, the complainant brought his issue before the Head of Human Resources, intimating to her that this was a case of harassment, as well as forwarding to her the e-mails surrounding the bathroom incident. Upon receiving an “Out of Office” notification, he forwarded these materials to the Senior Vice-President and requested a meeting. Only on September 8 did the Depart ment Head finally notify him that she could meet with him on the 13th. On that day, during a meeting which lasted two hours, he told her the whole story and asked what she intended to do about it. She replied that she would follow up with him that same day or the day after. It turned out that there was not enough time for a follow up, however, as the complainant was fired by the Director of Maintenance that very day.
The employer did not challenge the fact that the thread of e-mails in connection with the bathroom repairs represented psychological harassment. In the CRT’s view, the supervisor’s behaviour when he shook his fist under the complainant’s nose and raised his voice to him represented another form of harassment. According to the CRT, all these events put together were part of a continuum, which resulted in the humiliation of the complainant, in the undermining of his dignity and psychological integrity and in the creation of an environment which was detrimental to him.
The CRT recalled that, pursuant to the Act,2 employers have a duty to “take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it.”
The employer argued two points in connection with his duty to prevent. On one hand, the company has a harassment policy pursuant to which Mittal undertakes to provide everyone, employees, suppliers and clients alike, with a workplace environment free from all forms of harassment, and which specifically sets out that, where a person believes he or she has been subjected to, or has witnessed, a case of harassment or discrimination, he or she must immediately notify the Head of Human Resources and Legal Affairs. This policy was in effect in January of 2003 when the complainant was hired, and was not amended following the passage in 2004 of the provisions in the Act applicable to harassment. Furthermore, in August of 2003, the members of the Human Resources Department received training on the new harassment provisions in the Act prior to their coming into force.
The CRT concluded that, as a result of taking these two steps, the employer believed that it had fulfilled its duties in terms of preventing psychological harassment. The CRT nonetheless held that the employer had failed in its duty to use reasonable means to prevent harassment. It is inconceivable, the CRT writes, that harassment training was only provided to the Human Resources Department, rather than to all employees. “The very idea of prevention requires that a description of that which is prohibited be given in sufficiently clear terms and that employees bound by the policy be notified thereof”. In the CRT’s view, it was necessary, for a business the size of the employer’s, and in light of the complexity of the notion of psychological harassment, that it be explained to all employees what may constitute a case of psychological harassment.
Only after the complainant had filed a harassment complaint with the Commis - sion des normes du travail, in October of 2005, did the Vice-President of Human Resources and Legal Affairs engage an external investigator to shed light on the facts reported by the complainant to find out whether the persons named in the complaint had breached the harassment policy. After receiving the report, the Senior Vice- President warned the Director of Maintenance that the bathroom incident was unacceptable. However, as the Commission observed, the Senior Vice-President had been notified of the e-mail issue as early as the month of April. The reminder he received in May was no more successful in eliciting a response from him. Indeed, even if the complainant had not notified the person named in the policy for such purpose, the Commission considered that the employer had been apprised of the situation and that it should have intervened over the next few days. The same can be said for the second situation, namely that of the show of aggressive behaviour by the complainant’s immediate supervisor in August, which led to an e-mail directed to the Head of Human Resources and was subsequently forwarded to the Senior Vice-President. Once again, the employer was slow in responding. The Commission determined that the employer had demonstrated a level of inertia that was not in keeping with its duty to put a stop to occurrences of psychological harassment.
The first significant lesson to take away from this decision is that an employer’s duty to take reasonable action to prevent psychological harassment is not completely discharged by adopting a policy and training its human resources staff on psychological harassment. According to the CRT, an employer must also take action to describe in clear terms what is prohibited and to explain to all employees what psychological harassment is.
Furthermore, when an employer hears of behaviour which could constitute psychological harassment, it must investigate and take reasonable action to put a stop to all harassment, and do so with all due diligence.