Frolov

Frolov v. Mosregion Investment Corp [2010] O.H.R.T.D. No 1808

Mr. Bakouchev's responses demonstrate a complete lack of understanding of the seriousness of sexual harassment complaints and the legal obligations placed on the employer that receives such a complaint to proceed promptly with an investigation before drawing any conclusions about the validity of the complaint.

The perception of neutrality and lack of bias to both a complainant an an alleged harasser are key components in an investigation 98

Facts

The applicant, Mr. Frolov, is a employee who worked for small company based in Ontario.  Within 18 working days, Frolov submitted three written complaints of sexual harassment and sollication to his boss Mr. Bakouchev.  Each requested an investigation as per company policy and demanded accommodation in the workplace (i.e. the termination of the supervisory relationship and the separation of the parties).  Bakouchev's response to the first two complaints was one of disbelief; he simply could not believe that a young woman would/could sexually harass her male superior. He claimed that he researched case law and found no recorded cases of such harassment, but provided no evidence of this research.  Rather than conduct an investigation, he responded to the complainats by telling the Frolov to enjoy the attention and to quit complaining/exaggerating. Upon receiving the third complaint, which contained an email sent to the male complainant from the female coworker, the employer finally commenced an investigation.  However, his investigation concentrated, at least initially, on allegations of sexual harassment made by the coworker in her email to her superior (the complainant).  For example, his letter to the alleged harasser, and his subsequent questioning of other employees,  inquired (directly or indirectly)  whether the alleged perpetrator of sexual harassment had been the victimof sexual harassment.  After two months, Bakouchev came to the conclusion that Frolov had been telling the truth.  He did not, however, communicate this finding to Frolov, who filed an application with the Tribunal.

Issue

1.  Can a tribunal make a ruling on an employer's duty to investigate an allegation of sexual harassment when there is no ruling on the sexual harassment.
2. Did the employer fail to follow its own anti-harassment policy?
3. Did the employer fail to take the applicant's concerns seriously?
4. Did the employer fail to commence the investigation in a timely manner?
5. Did the investigation intitially suggest that the coworker was the victim rather than the perpetrator of sexual harassment?
6. Did the employer communicate the findings of the investigation to the complainant ?
7. Did the investigation constitute discrimination on the basis of sex?

Decisions

1. Yes
2. No
3. No
4. No
5. Yes
6. No
7. Yes

Reasons

1. There is no need to determine whether or not sexual harassment has occured in order to determine whether the employer has fulfilled its duty to investigate an allegation of sexual harassment.  The Tribunal relied on Nelson. v. Lakehead, 2008 HRTO 41 (CanLII).
2. Yes; contrary to its own policy, the employee did not forward copies of the complainant's letters to the respondent; it filed to appoint a mediator and it did not take steps to ensure that the complainant and respondent worked in separate offices.
3. Yes; an employer has an obligation to act promptly on all complaints of sexual harassment, even if it does not believe the complainant.  Mr. Bakouchev thought the complaints were some kind of a joke and his response was to tempt to persuade the complainant to be serious, not to exagerate, to stop complainaing, to be reasonable, to enjoy the attention, to be nice to the respondent.  Ignorance of his duty to investigate does not excuse him from failing to take the complaints seriously.
4. Even though the employer started an investigation within 18 working days, in this case the delay was deemed to be unreasonable, given the smallness of the office space, the proximity of the complainant and the respondent within the working space, the relationship of subordination between the parties, the repeated written requests for an investigation, and the failure to respond before the third complaint. 
5. When the employer finally took action, his response was inappropriate; he sent a letter to the alleged harasser asking if she had been the victim of sexual harassment. His questions to his employees did not mention the allegations made by the complainant, but sometimes alluded to those made by the respondent. This shows that the employer was not neutral in his investigation.
6. While the employer concluded that the complaint was valid by the end of September or beginning of October, it did not communicate that conclusion to Frolov. The only way in which in which this information was communicated was in the context of the Tribunal hearing, in which Bakouchev did not dispute the fact that Frolov had been sexually harassment. This is insufficient.
7. The employer's approach was based on the sexist belief that older men sexually harass younger women and not vice versa. This discriminated against the complainant on the basis of sex.

The tribual relied on the three-part test for determining the duty to investigate as it is outlined in Laskowska

1. Awareness of issues of discrimination/harassment. Policy Complaint mechanism and Training: Was there an awareness of issuses of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;  
2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it resonably investigate and act?; and  
3. Resolution of the Complaint including the Complainant with a Healthy Work Environment) and Communication: Did the enmployer provide a reasonable resolution in the circumstances? If the complainnat chose to return to work, could the employer prvoide him/her with a healthy, discrimination-free work environment? Did it commnicate its findings and actions to the complainant?
4. Flexibility: While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness not correctness or perfection. There may have been several options - all reasonable -  open to the employer. The employer need not satisfy each elements in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgement on whether the employer acted reasonably.

Order

The Tribunal relied on the following considerations outlined in ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.):

The Divisional court... recently confirmed that an award to compensate for the experience of victimization is predicated upon a number of considerations, including: the impact of the infringement, the duration, frequency and intensity of the offensive conduct; the vulnerability of the complainant; the objections to the offensive conduct; and knowledge that the conduct was unwelcome. (104)

It decided that the victim, who strenuously objected to the offensive conduct with no satisfactory response from the employer, should receive $7500. It  also ordered the employer to have its sexual harassment policy reviewed by an expert and to take the Commission's training module "Human Rights 101".