Northern Exposure

Refusing to collaborate in harassment investigation can be grounds for dismissal

By Olivier Lamoureux

In Séguin v. Dessau Inc., a tribunal, the Commission des relations du travail (CRT), upheld the dismissal of an employee who had behaved in a vexatious manner toward a subordinate he was enamored with. The dismissed employee had refused to collaborate in the employer’s investigation into an incident of psychological harassment.

Facts

An executive (Séguin) had an affair with a subordinate employee for a few weeks. The relationship, however, deteriorated rapidly. Desperate, Séguin left a number of inappropriate messages on the employee’s cellphone while off duty. One day, claiming that he was feeling depressed, he expressed suicidal thoughts and left the office.

The employee warned one of her superiors of the situation. The superior contacted the police to ensure Séguin’s safety. Séguin reacted by anonymously informing the employee’s husband of their relationship.

In the wake of these events, Séguin’s colleague filed a psychological harassment complaint against him. The employer launched an investigation. When the employer questioned him about the relationship, Séguin invoked his right to privacy and refused to answer certain questions. He also demanded that he be accompanied by his lawyer for the remainder of the investigation. Confronted by Séguin’s repeated and persistent refusals, the employer decided to dismiss him.

Séguin filed a complaint for dismissal without just and sufficient cause.

CRT’s decision

An employee’s right to privacy: According to the Commission, the employer’s disciplinary powers extend to conduct engaged in away from the worksite or outside working hours if that conduct is or entails consequences directly linked to job atmosphere or work relations between the employees concerned and if it has adverse effects on the employer.

In this case, Séguin’s misconduct toward his colleague affected their work relations, especially given Séguin’s position of authority over her. His actions also affected the business’s work atmosphere, seeing as some members of management were called in to handle the fallout caused by the strained relations.

In the course of its investigation, the employer could therefore lawfully obtain information about the executive that was theoretically private. In the commissioner’s opinion, Séguin had obviously blurred the lines between his private life and his professional obligations as an executive. The commissioner also pointed out that the right to privacy is not a viable defense against misconduct affecting the work environment.

Lawyer’s presence during the investigation: As for Séguin’s demand to meet with his employer only while in the presence of his lawyer, the commissioner ruled that the employer had every right not to submit itself to that condition and to pursue its investigation. The employee was still being compensated and was under the legal authority of the employer. The employer was not required to accept the presence of a lawyer.

Duty to collaborate with the employer: The commissioner reiterated that, as an executive, Séguin was particularly bound to collaborate frankly and conscientiously with the employer’s investigation and to provide all documents that might prove useful to it.

By constantly invoking his right to privacy to avoid answering the employer’s legitimate questions, by refusing to meet his employer unless his lawyer was present, and by refusing to provide certain documents in due time, Séguin was at fault. The employer was therefore justified in sanctioning him.

Considering Séguin’s status as an executive and his obligation to act professionally within the business, his dismissal was justified.

Take-home for employers

This decision illustrates the latitude afforded to employers in Québec when conducting psychological harassment investigations. It is reasonable to believe that other Canadian jurisdictions would offer as much leeway in the course of similar investigations.

This means that employees targeted by a complaint must collaborate frankly and conscientiously during the investigation in question, on pain of disciplinary action. This obligation is all the more stringent if the employee holds an executive position.

Even if some of the information an employer requests may be private, that information must be disclosed during the investigation if it is relevant, if it is directly related to work relations within the company, or if it has an adverse effect on the employer.