Victims, supervisors and companies take note
By Howard Levitt
Original Source: National Post
Some employers have the ineluctable ability to snatch victory from the jaws of defeat. Rick Smith convinced a court that he had not engaged in sexual harassment, but still lost.
Smith was a division manager at southern Alberta’s South Country Co-Op, with 22 years of service. He began a romantic relationship with “AM,” whom he had originally hired and who ultimately reported to him. As with many office affairs, it ended rancorously. AM accused Smith of a series of non-consensual sexual acts, such as comments, kissing, fondling, grabbing, even intercourse. Smith’s supervisor conducted the investigation.
Smith and AM provided conflicting accounts, with Smith portraying a consensual affair and AM, a relationship characterized by coercion, and maintained only to keep her job. Without bothering to probe AM’s version of events or interview any witnesses, Co-Op fired Smith for sexual harassment, sexual assault and lack of candour during the investigation. Smith sued.
Madame Justice Corina Dario of the Alberta Court of Queen’s Bench did not believe either AM’s claim of non-consensual sexual conduct or her claim to have conceded only to maintain her employment. The affair, she found, had lasted for more than four years, well after the date of the alleged incidents and prior to her separation from her husband. Far from feeling coerced, AM had even referred to herself as “Ms. Smith.” Her recall of the dates and times of the alleged incidents and of her frame of mind at the time left the court unconvinced.
Co-op was upbraided for the poor quality of its investigation. It took few steps to substantiate the allegations. Smith’s supervisor did not ask AM for the names of witnesses, much less question them. The only parties interviewed were Smith and AM. The details of the sexual harassment were neglected. The investigator did not ask about the alleged physical contact or the offensive comments purportedly made.
Regardless, Co-Op still prevailed.
Smith had breached his fundamental duty to be truthful. He lied to the investigator and management about the history and nature of this relationship with this direct report. He concealed his conflict of interest when he should have been forthcoming. He also was found to have harassed (albeit not sexually) AM in violation of Co-Op’s workplace policies and failed to follow proper disciplinary procedures. He failed to fully disclose the extent and timing of his relationship with AM, a serious breach given his senior role and position as her superior.
Although Co-Op ultimately prevailed, this remains a stark reminder as to the proper approach to conducting investigations:
Be thorough. A simple accusation of harassment can be ruinous. Ensure you are thorough in uncovering the truth. There must be no precognition as to whom to believe.
Be proactive. Ensure that complaints are acted upon quickly. Determine whether any workplace changes need to be made in order to prevent future complaints.
Be impartial. The investigator should be independent, objective and have no personal ties to either party.
Be knowledgeable. The investigator should also be knowledgeable and competent when it comes to methods for conducting proper investigations. Train someone in-house to do this. Many courses exist. Using legal counsel is a disadvantage as it permits employees to refuse to respond except through their own counsel.
Be diligent. The investigator should keep a written record of the process, with an investigation report summarizing the nature of the allegations, the steps taken, the evidence gathered and the findings.