December 20, 2023

Legal Update: The weight of an investigation in cases of dismissal for harassment

On September 12, 2023, in Jutras v. Horizon Lussier ltée [1], Administrative Judge Mylène Alder found that the plaintiff had committed serious fault by engaging in psychological and sexual harassment of a co-worker. She thus dismissed the complaint for dismissal without good and sufficient cause[2].

This decision is significant, as it confirms that employers can justify disciplinary measures based on the findings of an investigation. Furthermore, it underscores the considerable weight of the investigation in meeting the obligation to prevent and put a stop to harassment.

The facts

The Complainant, Mr. Jutras, was dismissed on March 18, 2019 after working for over 20 years as a sales representative at Horizon Lussier ltée (the « Employer »), a recreational vehicle dealership.

The Employer, Horizon Lussier ltée, claimed to have dismissed the Plaintiff for good and sufficient cause, namely a serious fault consisting of psychological and sexual harassment towards a co-worker on December 19th, 2018.

Indeed, on January 9th, 2018, the Plaintiff’s colleague filed a formal complaint under the Employer’s harassment prevention policy, alleging that she had been sexually assaulted in her home by the Complainant. The following day, the Complainant was suspended with pay for investigation purposes. When the investigation concluded that there had been harassment, he was dismissed.

The Complainant, for his part, then filed a complaint for dismissal without good and sufficient cause, arguing that at the time of his dismissal, the Employer did not have, in support of its decision, proof of the facts of which he was accused. In his view, the findings of the external investigation were not sufficient to establish that he had committed the alleged misconduct justifying his dismissal.

The analysis    

As a preliminary matter, the Administrative Labour Tribunal (the « Tribunal ») noted that its role was not to determine whether there had been psychological and sexual harassment, but rather to ascertain whether the dismissal was justified in the circumstances. In other words, the Tribunal had to determine whether the Employer had discharged its burden of proving, on a balance of probabilities, that there was sufficient evidence that the Complainant had committed psychological and sexual harassment towards his colleague.

Employer’s obligations 

According to the Tribunal, the evidence showed that the Employer had acted diligently, in particular by mandating an external investigator to shed light on the alleged situation. The Tribunal emphasized that the investigator had « conducted his investigation in accordance with the rules of the trade ».

It was in light of the investigator’s finding that the Employer dismissed the Complainant, in order to ensure the well-being of its employees, and in compliance with its obligations to prevent and put a stop to harassment.

Sufficient evidence of the alleged acts

The Tribunal also concluded that, insofar as the Employer had ensured that a proper external investigation had been conducted, it did not have to wait for the Complainant to be charged or convicted of sexual assault before dismissing him. Indeed, the Employer’s obligations with respect to harassment exist notwithstanding the presence or absence of criminal proceedings or of a conviction:

[37] […] It [the employer] did not have to wait until he was accused or convicted of sexual assault before deciding to dismiss him [the complainant]. His obligations as an employer under the ARLS, the Civil Code or the Charter exist, regardless of whether or not there are criminal proceedings. (our translation)

According to the Tribunal, the Employer could therefore « endorse » the investigator’s finding of harassment and dismiss the Complainant immediately, despite the principle of progressive discipline.

Admissibility in evidence of elements that did not exist at the time of dismissal

It is interesting to note that, in support of its decision, the Tribunal considered as admissible in evidence elements that did not exist at the time of dismissal, namely the fact that the Complainant had eventually been charged and found guilty of sexual assault by the Court of Quebec for the event in question. In the Tribunal’s view, by finding beyond a reasonable doubt that the Complainant had committed a sexual assault on his colleague, the Court of Québec’s judgment confirmed a posteriori the Employer’s conclusion that the Complainant had committed a serious fault justifying his immediate dismissal.

Connecting link to work

It should be noted that, in the alternative, the Complainant claimed that if there had been an assault, it had been committed at his colleague’s home, and that there was therefore no connection with work.

Citing doctrine and case law, the Tribunal reminded us that the notion of workplace must be conceived broadly and liberally. It stated that even if the facts had not occurred at work or in the course of work, it was not necessary for the employer to provide direct evidence of negative repercussions on the work environment. Indeed, in the Tribunal’s view, it was clear that forcing a colleague to be in daily contact with her assailant, who held a hierarchically superior position, ran counter to the Employer’s obligation to prevent and put a stop to psychological and sexual harassment in the workplace, thus confirming the connecting link.

Seriousness of the misconduct

After concluding that the Employer had sufficient evidence of harassment at the time of dismissal, the Tribunal considered various aggravating factors leading to a finding of serious fault, in particular the fact that the Complainant worked near his colleague, held a hierarchically superior position and was in daily contact with her.

Although the Complainant claimed that the misconduct of which he was accused by the Employer constitutes an offence » at the lower end of the spectrum of sexual assaults punishable under the Criminal Code », having been summarily charged and having received a conditional discharge upon conviction, the Tribunal rectifies:

[56] This claim is surprising and reflects an outdated vision of the values of contemporary Quebec society. Sexual assault, no matter where it falls on the spectrum of seriousness, remains a criminal offence and a crime against the person. (our translation)

The Tribunal added that it is difficult to believe that in a case of sexual assault, dismissal is a disproportionate sanction, and then concluded that it was a serious fault that allowed the Employer to disregard the principle of progressive discipline to fulfill its obligations.

The findings

The Tribunal concluded that the Employer had met its burden of proving, on a balance of probabilities, that it had, at the time of its decision to dismiss the Complainant, sufficient evidence that the latter had committed psychological and sexual harassment towards his colleague, allowing it to dismiss him immediately.

Practical advice

This decision is a reminder of certain basic principles regarding harassment and the administration of evidence. Not only can an employer use an investigation report to justify a disciplinary measure, but this investigation report is also of considerable value when the Tribunal must assess whether the employer has fulfilled its legal obligations to prevent and stop harassment. It demonstrates once again the importance of holding investigations in alleged cases of harassment in the workplace.

[1] 2023 QCTAT 4071.

[2] Complaint filed pursuant to section 124 of the Act respecting labour standards, RLRQ, chap. N-1.1.

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