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Harassment Investigation and Intervener Status

By January 14, 2019August 17th, 2020Employment Law

Consider this scenario: you complete a sexual harassment investigation and, after receiving legal advice, you terminate the harasser for good reason.

As we frequently tell our clients, anyone can sue you – but their success is never guaranteed.

So your former employee sues you for wrongfully dismissing him and wants lots of money from you.

You argue that you had good reason to fire him and rely on the evidence of the victim (who is still your employee).

What if the victim of the harassment wants to be involved in the lawsuit?

Intervener Status Granted in an Employment Lawsuit

In the Ontario Superior Court decision Render v. ThyssenKrupp Elevator, a Master (a position one step below a judge) found that the victim of sexual harassment could be granted intervener status at the fired employee’s trial for wrongful dismissal.

What is an Intervener? In court proceedings, an intervener is a party (like an individual, corporation, or special interest group for example) that does not have a direct interest in the proceeding, but they may be adversely affected by the lawsuit, and whose help in the lawsuit would help reach a determination on the issues. They are more than a witness – they can have a lawyer and make submissions to the judge (or judge and jury).

So in that case above, the employer terminated an employee for cause based on their sexual harassment investigation (specifically, the employee slapped the co-worker’s buttocks and “placed his face in the area of [her] breasts and pretended to nuzzle into them.” While the employee claimed the contact was accidental, the employer found the victim credible and terminated the harasser.

After the employee started his lawsuit, the co-worker wanted to legally intervene, in order to provide her version of events with her own lawyer present, because her moral and physical integrity could be affected by the judgment.

This person was also an existing employee for the employer; and she was concerned that if her co-workers accepted the harasser’s version of events it would undermine her reputation at work (she claimed she had already begun to feel stigmatized it was now known that her complaint that led to the termination).

The victim also stated that she wanted to ensure that such physical conduct would not be tolerated in the future, saying that if her version of events was not accepted, and the court overturned the termination, her integrity (physical and otherwise) may continue to be threatened in the workplace.

(An interesting note here: the victim was already involved in the lawsuit, since the Employer asked her to complete and swear an affidavit confirming what she knew was true. In the pre-trial activities, the victim took part in cross-examinations of evidence and inferred that it was a harsh cross-exam.)

The Court granted the victim’s standing as an intervener in the harasser’s lawsuit. The Court found her evidence “supports her contention that her moral integrity will be in issue at trial and that, in the context of her ongoing employment with [the employer], both her moral and possibly physical integrity could be affected by the outcome of the trial”. In addition, the Court found that all three parties (employer, employee, and victim) had a common interest in determining what happened in the harassment incident, and whether the alleged harassing conduct warranted termination for cause.

Concluding Thoughts

If I were the lawyer for the employer on this case, I would welcome the employee’s direct involvement in the lawsuit. With the #MeToo movement and the increase in allegations of harassment in general, there may be a corresponding increase in the number of employees who complain of harrassment. Having those victims be able to influence connected litigation is of great assistance.

But just because this one person was granted intervener status, this doesn’t mean the Court will always grant any person such standing. It would only be granted on a limited basis that does not delay resolution of the lawsuit.

DMC