A recent Saskatchewan court decision (Gillam v. Waschuk Pipeline) tackled the issue of whether ‘indirect harassment’ by an employee can be grounds for firing. The harassment was ‘indirect,’ because in this case much it took place when the victims were not actually present.
The court has come back with a resounding ‘yes’. The Gillam decision could have broad implications for workplaces across the country. According to the Queen’s Bench, a poisoned work environment can now be established based the negative things that employees say and do – even when they are not in the presence of the targets of their harassment.
In this case the harassment was based on gender and would meet the standards of grounds for discrimination across the provinces and at the federal level.
The plaintiff employee (who was suing for wrongful dismissal) was a supervisor with 12 years of service and a fairly spotless record of employment. He was responsible for supervising many employees, both men and women, working out in the field in a camp. He used derogatory and foul language toward three of his female employees. The catch is, he did this in the office when the female workers were not actually there.
However, he also treated the women in a bullying and aggressive manner. It was this direct mistreatment that served to amplify the seriousness with which others took the comments that he made outside of the women’s presence.
Being a responsible employer, Waschuk was legitimately concerned about maintaining a harassment-free work environment. When they heard about the supervisor’s behaviour, the company delivered him a stern warning. While the employee apologized, the warning didn’t actually alter his behaviour. He went on to make even more derogatory comments about his female co-workers. (Although, again, not when they were around.) The company terminated his employment with just cause.
At the wrongful dismissal trial, the judge was clearly of the view that while “[s]ummary dismissal should only be used for serious misconduct or breaches of a fundamental kind”, this onus was met in this case. Specifically, the Court determined the plaintiff’s actions
…showed a complete disregard for his responsibilities as a supervisor over a significant period of time. He created a hostile work environment. He sexually harassed female staff.
The Gillam decision shows that “indirect” harassment can be treated the same as direct harassment, and it highlights the importance of employers using progressive disciplinary measures when they become aware of misconduct and harassment by an employee.
Gillam’s wrongful dismissal case was likely dealt a fatal blow by the fact that continued to harass his female employees even after having been warned and apologizing.
Norman Grosman tackles your employment law dilemmas
regularly on Workopolis. More information about him and his legal services can
be found on his website grosman.com