On July 20, 2010, the Ontario Superior Court of Justice found Kraft Canada to be negligent in dealing with the complaints of a worker who was the repeated victim of derogatory, sexually-charged comments from coworkers.
Douglas Disotell, 36, worked as a machine operator at Kraft’s Ingleside cheese factory for 16 years before taking medical leave in May 2006. The persistent harassment and management’s lack of action led to his medical breakdown and subsequent inability to return to the poisoned work environment.
Interestingly, Kraft’s defense did not squarely deny the harassment, but disputed the severity of the harassment and claimed that Disotell failed to properly communicate his complaints prior to his medical leave.
How Was the Matter Mishandled?
Disotell had approached his shift leader, Philip Bougie, on several occasions, specifically naming four harassing coworkers. However, Disoltell claims that Bougie did little more than suggest that the comments would stop if Disotell would not react so negatively to his coworkers. Bougie later admitted to having verbally reprimanded two of the four named employees, but claims that he did so without knowing the exact comments they had made to Disotell.
On another occasion, Disotell expressed the desire to file a formal written complaint, but claims that Bougie discouraged such action and stated that Disotell would not have his support if he proceeded with a written complaint.
Although Bougie claims that Disotell complained to him only once, Justice P.B. Kane found Bougie’s testimony to be conflicting and lacking in candour. The fact remains that regardless of the number of complaints, Bougie failed to act appropriately.
After Disotell started his medical leave, Kraft’s HR department began an investigation, but Justice Kane found the exercise to be lacking in seriousness. None of the four named coworkers were included in the investigation, nor any other workers present during Distotell’s work shifts.
To compound matters, Bougie told HR that Disotell’s complaints were exaggerated due to stress and depression over family-related matters, a conjecture that HR accepted based on Bougie’s tenure and position. Despite the seriousness and obvious contradictions in the allegations, HR failed to probe for further details. The company also declined Disotell’s offer to meet with representatives at Kraft’s head office.
Ineffectual Harassment Policy
Kraft already had a policy in place for zero tolerance of harassment, requiring supervisors to respond immediately to complaints and to remain neutral until all facts were collected. However, Kraft later sent letters to Disotell stating that the investigation could not proceed, implying that Disotell was not providing sufficient detail.
Justice Kane pointed out that Kraft’s letters to Disotell sent “a clear message…that the company had no intention of being pro-active in relation to his complaints or it’s Policy.” Justice Kane concluded that “policy…is only as effective as the individuals who administer it.”
Awards
Justice Kane found that Kraft had repudiated the employment contract, and that its failure to prevent harassment is “a breach of duty capable of amounting to constructive dismissal.” In view of Disotell’s age, lower level of position at Kraft, and the unlikelihood of finding comparable pay in his locale, Disotell was awarded 12 months notice minus mitigation earnings, plus interest and legal costs.
Points to Note
Failure to act appropriately on harassment complaints could result in time-consuming and costly consequences for employers. As seen in this case, failure to apply existing guidelines for investigating employee complaints not only weaken an employer’s defense, but also reflect negatively on the presence of in-house policies designed to protect the workplace. Employers would be well advised to review their policies for compliance with federal and provincial employment legislation, and to ensure their application in the workplace.
See: Disotell v. Kraft Canada Inc., [2010] O.J. No. 3379, July 20, 2010
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