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‘Person of authority’: When it comes to harassment, executives can’t count on progressive discipline

November 16, 2023
By Justine Laurier and Evert Akkerman

Photo: Adobe Stock

For decades, workplace harassment—and especially workplace sexual harassment—was condoned, ignored, and tolerated.

While the drama Mad Men may have been a bit of an exaggeration, it certainly wasn’t entirely fictional. When organizations allow this kind of behaviour, the result is typically a lack of trust in the workplace. However, in recent years the tide has turned, and the floodgates opened: we are seeing various Hollywood figures and business tycoons being exposed for their behaviour, in addition to a rise in harassment and discrimination claims.

Across Canada, employers are required by law to ensure that their workplace is free of discrimination and harassment. While putting a Violence and Harassment Policy in place is mandatory, it cannot be a standalone measure. Organizations also need to see to it that their policies are implemented (which includes training) and enforced.

But harassment, which is generally a pattern of behaviour, isn’t confined to physical or sexual manifestations; it can also be psychological. And when an employee’s actions violate organizational policies or human rights, their employer can be held responsible. Especially if there’s a lack of diligence on the part of the employer, harassment cases tend to result in higher compensatory awards.


Ruling out of Quebec

This summer, the law firm of Borden Ladner Gervais obtained a favourable ruling from the Superior Court of Québec in the matter of Couture v. Kleen Flo Tumbler Industries Limited, 2023 QCCS 2175. The case involved allegations of psychological and sexual harassment against a Mr. Couture, one of the company’s senior executives.

The case was heard in Québec, seeing as Mr. Couture was based at the company’s Québec location, even though head office was in Toronto (Brampton, more specifically). He had a considerable number of continuous years of service and a clean disciplinary record when allegations of psychological and sexual harassment and unacceptable conduct with clients reached head office.

Mr. Couture (previously also a shareholder) had always maintained excellent relations with the company’s owners—to the extent that the founder considered him to be a “third son.” When the founder received reports about Mr. Couture’s problematic behaviour, his initial response was “this can’t be true.” Coming to the realization that the allegations were indeed true came as a profound shock to the founder, and it affected his health.

13 employees filed complaints

The reality was that Mr. Couture’s conduct had become so unbearable that 13 employees had filed a complaint against him. As a result of his hostile attitude, the office and warehouse workers even went so far as to avoid the workplace for several days in protest.

Following these events, the employer brought in an external investigation firm. After interviewing almost all the employees, the investigator presented a report that substantiated most of the allegations against Mr. Couture. In response to the report, the employer terminated Mr. Couture for cause, without notice or pay-in-lieu thereof. Mr. Couture decided to challenge this dismissal.

At trial, wherein co-author Justine acted as defence counsel for the employer, Quebec’s Superior Court concluded that the grounds for dismissal were valid, in turn justifying Mr. Couture’s termination for cause – despite his many years of service and otherwise clean slate.

Even five years after the conduct at issue, some of the 11 witnesses were brought to tears in the court room when recalling the treatment and threats they had been subject to. One of Mr. Couture’s standard lines had been that “if you call Toronto, you will lose your job”—an implicit admission of the wrongful nature of his conduct.

Evidence at trial demonstrated that:

  • employees walked on eggshells whenever they spoke to Mr. Couture
  • he was disloyal to his employer, stating that head office employees were “idiots”
  • he made off-colour comments about an employee’s feminine attributes
  • he placed his hand on an employee’s thigh, making her extremely uncomfortable
  • he was disrespectful toward women and disparaged employees that were visible minorities.

Case in point, Justice Turcotte noted that Mr. Couture’s lack of civility was evident during cross-examination when he answered defence counsel Justine’s questions in an insolent tone.

‘Person of authority’

The Court referred to Mr. Couture as “a person of authority” who, due to his position, should have exemplified role model behaviour that reflected the company’s values. Moreover, again considering his authority, it had also been his duty to ensure that the workplace was free of psychological and sexual harassment.

Mr. Couture argued that the employer should have applied progressive discipline before dismissing him. Judge Turcotte rejected this, stating that progressive discipline does not apply to a senior executive who is at “at the top of the company’s hierarchy.”

Lessons for employers

The Québec Superior Court’s decision includes the following outcomes:

  • violation of harassment policies can be grounds for a just cause dismissal
  • courts apply a higher standard of behaviour to employees at the executive and director level
  • bad behaviour can deprive senior employees of the “right” to progressive discipline
  • senior executives may be so closely associated with the organization that they are “the employer” in the eyes of the law, especially if they oversee a site separate from head office.

Justine B. Laurier is a partner and regional group manager of the Labour and Employment Group in Montreal with Borden Ladner Gervais in Montréal, Québec. She can be reached at jlaurier@blg.com.

Evert Akkerman is an HR professional based out of Newmarket, Ont., founder of XNL HR, and partner at executive search firm Crossings People. He can be reached at info@xnlhr.com and evert.akkerman@crossings-people.com.

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