This week I want to tell you about a case against the Canadian Security Intelligence Service (CSIS) by a former female employee alleging serious sexual assault and workplace harassment.
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The allegations by the employee, identified only as “Jane Doe,” are extremely troubling, including that an individual she worked closely with in the surveillance unit, sexually assaulted and raped her during work shifts. Added to that, Jane Doe alleged the conduct was witnessed by other CSIS employees, all of whom she claims did nothing to stop the conduct.
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Jane Doe launched an internal complaint in November 2021. She later asserted she was constructively dismissed in December 2021 while the investigation was ongoing.
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Jane Doe commenced a civil claim against the Attorney General of Canada in the Supreme Court of British Columbia. Last week, her claim was dismissed at a motion before her trial date. The judge in her case found that being a CSIS employee required Jane Doe to file a grievance pursuant to a statutory framework in the Federal Public Sector Relations Act, which was created to resolve employment-related disputes.
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Jane Doe argued she did not trust that CSIS could carry out a fair review process and that the internal process was “corrupt.”
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The court, however, found it had no cogent evidence to determine that CSIS’s investigation scheme was corrupt, that it lacked jurisdiction to hear the case, and dismissed it, despite acknowledging the deeply troubling allegations contained in the claim.
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This case serves as a good lesson for all employees that seek to levy bad faith claims on a termination or constructive dismissal. In my experience, it is only on the rare occasion that employees report misconduct to an employer when it happens.
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All too often, employees reserve making complaints or claims of misconduct until well after they leave the employ of their organizations.
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While this is not fatal to a claim for misconduct, employees could be found, like in the case of Jane Doe, to have failed to exhaust all internal avenues of investigation available to them. In fact, unionized employees are in most cases always required to file their grievances internally and are restricted from pursuing allegations of all kinds in a civil court.
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It is critical for an employee to report misconduct to an employer whenever possible. It gives an employer the opportunity to investigate the incident immediately and come up with reasonable solutions. Internal complaints allow an employer an opportunity to gather evidence, impose serious sanctions against wrongdoers and support victimized employees through employee support programs and remedial processes.
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If employers, however, fail to seize upon the opportunity to right the ship, an employee’s ultimate claim for damages flowing from the misconduct is significantly strengthened.
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It is, after all, the law for employers to investigate complaints relating to harassment and violence in the workplace.
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It goes without saying that employees are generally wary of the HR department. But failing to report workplace misconduct and avail yourself of internal remedial processes could cost you.
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Have a workplace issue? Maybe I can help! Email me at sunira@worklylaw.com and your question may be featured in a future column.
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The content of this article is general information only and is not legal advice.
