In a notable sexual harassment case, an employer’s flawed HR investigation proved costly. Despite having an extensive anti‑harassment policy and seemingly complying with the complainant’s wishes at the start of the investigation process, an employer was found liable for sexual harassment to the tune of more than $23,000 [1].
The facts
Over a number of months, a female employee was subjected to the overly familiar comments and conduct of her immediate supervisor. Initially, she informed her Operations Manager about the incidents but insisted on taking care of it herself.
Two months later, following an escalation of the distressing behaviour, the female employee again approached the Operations Manager, this time wanting to make a formal complaint. Here, the responsibility for conducting the HR investigation was passed on to the employer’s Complex Manager.
Ineffectual HR investigation
Unfortunately for the complainant, after another 7 working days and an ultimately ineffectual investigation process (with up to two departments of the company failing to take proper responsibility for the investigation), the complaint was ‘closed’ due to the harasser’s denials. The only action taken was the harasser having to simply re-read the company’s harassment policy.
Senior management seemed to dither and were unable to co-ordinate the HR investigation to a timely and logical conclusion.
The employer failed to provide sufficient support to the employee despite the requirements of the company’s policy. The employer’s dithering led the complainant to believe that her complaint was not being taken seriously.
The employer even failed to adequately consider whether the complainant and/or harasser should be moved whilst the investigation was on foot.
Where did they go wrong?
The Tribunal was particularly critical of:
- The employer’s failure to take proper heed of the initial informal report of sexual harassment;
- The failure by management to comply with the company’s own sexual harassment policy;
- The employer’s failure to properly support the complainant once the investigation was on foot; and
- The inadequacy of the employer’s remedial action – despite its attempts at re-educating the accused harasser in the company’s policy, this had “little, if any, impact on his [subsequent] conduct”.
Ultimately, the complainant was granted over $23,000 in damages. The Tribunal even went so far as ordering the company to provide a copy of the judgement to the Board of Directors as a future compliance measure – an embarrassing outcome for the employer.
[1] KW v B G Limited, DP & DF [2009] QADT 7
