“To Assume is to Accept as Truth Without Checking”: The Cost of Paying Lip Service to Respectful Workplace Policies
In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, Wal-Mart paid a high price for failing to properly investigate an employee’s complaint.
Meredith Boucher began working for Wal-Mart in 1999. She was a good employee and in November 2008 she was promoted to the position of assistant manager at the Wal-Mart store in Windsor. Her immediate supervisor was the store manager, Jason Pinnock.
Boucher and Pinnock had a good working relationship until May 2009 when Boucher refused to falsify a temperature log book at the suggestion of Pinnock. Thereafter, Pinnock became abusive towards Boucher. He belittled, humiliated and demeaned her, continuously, often in front of co-workers. Boucher complained about Pinnock’s misconduct to Wal-Mart’s senior management through the company’s “Open Door Communication Policy.” The policy encouraged employees to report on a confidential basis concerns about how its stores were operated or its employees treated.
In breach of this policy, Boucher’s request for a meeting with senior management was leaked to Pinnock, who then berated Boucher and subjected her to “an unrelenting and increasing torrent of abuse”. Despite substantial evidence of Pinnock’s abuse, including first-hand accounts from co-workers who described Pinnock’s treatment of Boucher as “terrible” and “horrific”, Wal-Mart found Boucher’s complaints to be unsubstantiated and notified her that she would face discipline for making unsubstantiated complaints. Wal-Mart concluded that Boucher was trying to undermine Pinnock’s authority.
Boucher quit after a final incident in which Pinnock forced her to count skids in front of co-workers to prove that she could count to ten.
Boucher brought an action against both Wal-Mart and Pinnock and the matter was tried before a judge and jury. The jury accepted Boucher’s claim that she had been constructively dismissed and awarded her damages equivalent to 20 weeks’ salary, the notice period specified in her employment contract. The jury also awarded $1.45 million in aggravated and punitive damages:
Moreover, the evidence reasonably supports the jury’s finding that Wal-Mart’s own conduct was reprehensible. That evidence, which I reviewed earlier, includes Wal- Mart’s refusal to take Boucher’s complaints about Pinnock seriously, its dismissal of those complaints as unsubstantiated despite substantial evidence to the contrary, its unwillingness to discipline Pinnock or intervene to stop his continuing mistreatment of Boucher, its threatened reprisal against her, and its contravention of its workplace policies. Although Wal-Mart may not have deliberately sought Boucher’s resignation, on the evidence led at trial that the jury undoubtedly accepted, Wal-Mart’s actions and its inaction were reprehensible
- $1.2 million against Wal-Mart ($1 million in punitive damages and $200,000 in aggravated damages); and
- $250,000 against Pinnock ($150,000 in punitive damages and $100,000 for intentional inliction of mental suffering).
Decision of the Court of Appeal
The Court of Appeal upheld the jury’s finding of liability. The Court condemned Wal-Mart’s response (or lack thereof) to Boucher’s workplace harassment complaint, characterizing its actions and inactions as “reprehensible.” The Court noted:
The Court of Appeal upheld all aspects of the jury’s award except for the amount of punitive damages. The punitive damages against Pinnock were reduced from $150,000 to $10,000 and those against Wal-Mart from $1 million to $100,000. In the Court’s view, an award of $100,000 was what was rationally needed to punish Wal-Mart and denounce and deter its conduct.
Take-Away Point for Employers
Employers must be vigilant in enforcing respectful workplace policies. As the Court of Appeal noted, it is not enough to simply pay “lip service” to those policies. Employers should be quick to investigate any potential complaints in a fair, objective manner focusing on assessing the facts at hand and avoiding hastily drawn conclusions. This includes adhering to any pre- determined policy, having impartial investigators, collecting adequate information and making a decision that is supported by the results of the investigation.