No need for ‘he said-she said.’ Emails are sufficient to prove workplace harassment in court

“He said-she said” court battles have become a thing of the past. Employees now rely on their email records as ways to record their complaints when facing workplace harassment.

No longer can an employer (or employee) afford to let an email go unanswered. If it does, it will quickly bear the consequences.

Take the case of, Heidi Bassanese, an office administrator, who worked for 19 years for German Canadian News (GCN) filing, invoicing and taking orders from customers.

Bassanese complained to company president Chris Perske that an accounts receivable clerk, Aziz Dhanani, was abusive and had been harassing her over an extended period.

On April 17, 2018 she wrote Perske about “being constantly harassed by (Dhanani) yelling and screaming at me…telling me that I am an idiot and that I should be fired.” She added: “I am very sorry Chris. I have never ever filed a complaint but I want you to step in and make sure this never happens again.”

Perske responded that the company was short-staffed, but he would run it by the company’s Human Resources person. According to Bassanese, she did not hear further.

After following up several times in May, Bassanese wrote again on May 15, 2018: “I am writing to you again to let you know that I am at my wit’s end and would like some sort of action to take place. I do not deserve to work in an environment where people are allowed to constantly yell and say inappropriate insults to me. Please look into this matter.”

On June 21, 2018 the situation worsened. Bassanese complained to the company’s Managing Director that Dhanani slapped her across the face three times. She filed a report with the police. Remarkably, the company terminated Bassanese, not her alleged abuser, that very day. She was 73-years-old.

Bassanese sued the company and Dhanani for, among other things, wrongful dismissal, aggravated damages and damages for assault and battery.

While Bassanese settled out of court with Dhanani she was still awarded $15,000 against GCN for vicarious liability for the multiple slaps she suffered. She was also awarded aggravated damages of $50,000 since her employer had ignored her complaint, neglected to investigate and failed to take steps to address Dhanani’s inappropriate conduct.

She also received 19 months of compensation in lieu of notice and 10 per cent of salary for employment benefits over this period, in the amount of $129,433.17. In all, her court award was $194,433.17.

Bassanese’s emails to her employer formed the evidence she needed to win her case. Her emails easily established the timeline of her complaints, GCN’s failure to take action, its failure to investigate and, most important, confirmed her dismissal following the alleged slapping incident.

Employers should note the following:

• Substance trumps form: Regardless of the corporate policy, employees are not required to “formally” complain to HR when being harassed. Complaints by way of email/text/WhatsApp will suffice;

• Act quickly: Set up a meeting to go over an employee’s complaint as soon as you receive it. Waiting a week is too long and won’t be viewed favourably by a court;

• Communication is key: Often giving an employee an in-person opportunity to report an incident provides a greater opportunity to diffuse tensions and find a fair remedy without further escalation;

• The best investigations are those done in-house, by competent HR staff or executives. If the matter is too sensitive to be dealt with internally, then use a retired judge with the experience and credibility to conduct a proper investigation.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces.The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt.

• Email:[email protected]| Twitter:HowardLevittLaw

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