HARASSMENT INVESTIGATION

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How Not to Investigate a Harassment Complaint –
Bernier v. Home Hardware

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In early 2002, Christa Bernier, who was employed at Home Hardware’s Distribution Centre in Wetaskiwin, Alberta, informed her employer that four months earlier, Daniel Elgert, her supervisor, cornered her in a storage room and pressed himself up against her, putting his legs between hers. A friend of Ms Bernier’s, a Ms Stengle, also told fellow employees that Mr. Elgert also made sexual advances to her.

Home Hardware responded quickly, bringing in Don Kirck, a manager with 26 years experience from head office in Ontario, to conduct an investigation. After speaking with 3 employees and Ms Bernier, Mr. Kirck met with Mr. Elgert, a 17-year employee of Home Hardware, and informed him that sexual harassment allegations had been made against him.Elgert was immediately suspended, led off site and not permitted to take any of his belongings with him.

Mr. Kirck was confident that he had his man, going so far as to tell Elgert’s son, who also worked at the Distribution Centre, that he was 100% sure of Elgert’s guilt in the matter.

If, at first glance, this sounds like a company taking its obligations to provide a harassment-free workplace seriously, and responding quickly and effectively to an incident of unacceptable conduct from one its supervisory staff, consider the following facts and whether they would raise alarm bells for you.
  • Ms Bernier is the daughter of the Distribution Centre’s Manager, Norris Bernier.
  • She was the subject of numerous complaints from fellow employees about her job performance.
  • Mr. Elgert had given Ms Bernier a poor performance review. He then transferred her to another area of the Distribution Centre, which separated her from her boyfriend, another Distribution Centre employee.
  • Co-workers reported hearing Ms Bernier say she would “get even” with Mr. Elgert for relocating her.
  • Mr. Kirck had never been trained to investigate sexual harassment complaints, and had never conducted an investigation before.
  • Mr. Kirck was very good friends with Norris Bernier, Ms Bernier’s father.
  • Kirck’s investigation consisted of talking to three employees. Two of them had no first-hand knowledge of the incident in the storage room. The third employee claimed to have seen it.
  • Kirck interviewed Ms Bernier, but took no written statement from her.
  • During his meeting with Mr. Elgert, Kirck refused to tell him what the particular allegations against him were. Elgert was in tears upon hearing he had been suspended, and implored Kirck to tell him what he had done to deserve the suspension. Kirck replied simply, “You know what you did.”
  • Among the belongings Mr. Elgert was not allowed to take with him were a log book containing daily entries, and a copy of the negative performance review Mr. Elgert conducted regarding Ms Bernier. These items subsequently disappeared, and were never found.
  • A petition was drawn up in support of Mr. Elgert from employees of the Distribution Centre. No one who signed the petition in support of Mr. Elgert was interviewed by Mr. Kirck, or anyone else at the company.
Home Hardware continued to refuse to provide Mr. Elgert with any details of the complaint against him until he retained a lawyer. The employer then asked to meet with Mr. Elgert, but would not do so if his lawyer were present. When Mr. Elgert refused to meet with them under these circumstances, Home Hardware proceeded to terminate him for sexual harassment of Ms Bernier and for his refusal to meet with them without his lawyer, characterizing this refusal as insubordination. Mr. Elgert filed suit for wrongful dismissal.

The jury in Mr. Elgert’s wrongful dismissal case clearly did not feel he had been treated fairly. They characterized Home Hardware’s conduct in terminating Mr. Elgert as harsh, vindictive, reprehensible, malicious and extreme. They rejected the allegations of sexual harassment made by Ms Bernier. They awarded Mr. Elgert 2 years salary in lieu of notice, $200,000 in aggravated damages, and $300,000 in punitive damages. As well, they awarded him $60,000 in damages from Ms Bernier and her friend for defamation.

On appeal, this was reduced to 2 years salary in lieu of notice and $75,000 in punitive damages. The Court of Appeal ruled that Mr. Elgert did not present any evidence of mental distress, and therefore set aside the award for $200,000 for aggravated damages. However, the Court also kept open the possibility that aggravated damages could be awarded where such evidence is brought forward.

The Court of Appeal also upheld the $60,000 defamation award against Ms Bernier and Ms Stengle, who the Court found had acted maliciously in lying about the sexual harassment. Given that all the parties in this case lived in a small town, such false allegations of harassment could be counted on to damage Mr. Elgert’s chances for other employment.

This case is a cautionary example of how not to conduct a workplace harassment investigation.

By virtue of his longstanding friendship with Mr. Bernier, the father of the complainant, Mr. Kirck should have been immediately ruled out as an investigator. For the evidence in a case to withstand scrutiny, which it sometimes must do when one of the parties takes the matter to court, the investigator, especially if he or she is another employee, should be as neutral a party as possible. Mr. Kirck’s friendship with the father of the complainant would suffice to rule him out as an investigator in this case.

Moreover, regardless of Mr. Kirck’s friendship with the complainant’s father, the investigation he conducted was slapdash and devoid of procedural fairness, and thus easily challenged in court. Mr. Kirck refused to disclose to Mr. Elgert the details of the allegations against him, and gave him no opportunity to respond in his own defence, a clear abuse of process. Moreover Mr. Kirck spoke to only three people, two of whom had no direct evidence to offer. Finally, there was the troubling disappearance of Mr. Elgert’s belongings from work, (which he had not been allowed to take with him when he was escorted off the premises), which may have contained evidence that would help to exonerate him.

Taken together, these reveal an investigation more designed to confirm the investigator’s predetermined conclusion than to establish what actually occurred.

Where an employer seeks to investigate a complaint in-house, it should seek to ensure that the person called upon to investigate has some degree of training in investigation and is familiar with basic notions of procedural fairness. For example, the person accused must be made aware of all the allegations against him or her, and be given an opportunity to respond in full to them. Also, there should be a written record of all interviews conducted, and all parties interviewed should be asked to sign their statements. The investigation results should be submitted in a written report. As well, the parties should also be given an opportunity to make submissions in response to such a report.

As this case demonstrates, the investigator, regardless of whether he or she comes from inside the company or is a third party, should have no prior personal relationship with the parties. The investigator should also keep an open mind regarding the allegations, including the possibility that they were brought forth in bad faith, as was the case with Ms Bernier and Ms Stengle.

Employers need to ensure that they have clear and easily accessible policies on harassment, including procedures for filing complaints, for responding to them, and for investigating them. Finally, if an employer is in any doubt as to whether a complaint can be handled in house, an investigator from outside the company should be brought in, to ensure objectivity and fairness. Had Home Hardware done this, they would have saved a great deal of money and distress.




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