Howard Levitt: How Ottawa can refuse to pay ex-governor general Julie Payette’s $150,000 annuity, $200,000 in benefits

A simple amendment to the Governor General’s Act, at least as it applies to her, would ensure she has no recourse.

The events at Rideau Hall last week have made clear: power or status do not protect you from complaints of harassment and accordant disciplinary action.

For months we have been hearing repeated complaints that Governor General Julie Payette presided over a toxic work environment and inflicted verbal harassment on employees, resulting in a six-month external investigation.

When the initial reports were released, Prime Minister Justin Trudeau, despite pressure, adamantly refused to ask for her resignation. Trudeau’s premature public support for Payette sent an alarming signal to her staff that the PM supported her behaviour and their complaints would never be adequately addressed or heard.

However, it now places the PM in a precarious position as the final investigation report has been scathing. Unsurprisingly, the governor general was forced to resign. But not forced to resign like an equivalent employee in the private sector would, without compensation based upon her misconduct, but with $150,000 a year and $200,000 in additional spending that governor generals are entitled to in the Governor General’s Act.

Realistically, the government, based upon the “cause” for her termination, should refuse to pay those amounts by a simple amendment to the Governor General’s Act, at least as it applies to her. She would have no recourse.

Workplace harassment issues are pervasive across many industries and companies. My office frequently receives calls from employees complaining of being micromanaged, having decisions relentlessly questioned, or being criticized and berated for their work, often in front of others.

From the employee’s perspective, there is sometimes little that can be done as this type of behaviour can be difficult to prove. Moreover, courts are understandably uninterested in inquiring into subjective evaluations of an employee’s work and the tone used by their manager in evaluations. Many employees do not realize that a court will not consider an employer’s criticism of the work of an employee to be bullying, provided it is done in a reasonable manner.

Constructive feedback on work quality and job performance almost never legally constitutes a poisoned work environment. However, if the abuse is something that a normal person should not be able to put up with it, it is a constructive dismissal and the employee can resign and sue. They may also have the alternative, having warned the company in advance, of suing their employer for negligence.

From the employer’s perspective, when abusive conduct by managers is unchecked, it can have damaging results. The company may suffer from high turnover, losing valuable middle and lower-level staff who suspect that human resources will do little to help them, and be increasingly unable to attract talent. It will also see a drop in productivity and quality of work.

Complaints of such behaviour may warrant an investigation, but if the company or organization receives a series of such complaints, an employer should investigate thoroughly the possibility of any systemic problems.

What many companies do not always realize is the importance of conducting a neutral and thorough investigation, which may include document collection and witness interviews in order to ensure they protect themselves against litigation and potential complaints relating to the procedural fairness of the investigation.

These investigations are best done by trained human resource managers who already understand the company’s rules and culture. If the company is going to use outside investigators, which should only occur if the conduct impugned is that of the CEO or a very senior executive, a retired judge should always be used.

Not only is their skill set one of analyzing and adjudicating based upon the objective and critical evaluation of evidence, rather than upon partisan cross-examination but, unlike a hired lawyer, a retired judge will have credibility with your employees, your board and a court if the matter ever reaches litigation. You will not be seen by the witnesses as retaining a “hired gun” who wishes to please the employer, but someone who will be objective.

There are statutory obligations in place for provincially regulated employers to investigate complaints or incidents of workplace harassment and violence under both Human Rights and Occupational Health and Safety legislation. Federally regulated employers are now under similar obligations due to the recent Workplace Harassment and Violence Prevention Regulations amendments to the Canada Labour Code, effective Jan. 1.

These new regulations impose several obligations on federally regulated employers, including: establishing a workplace harassment and violence policy; responding to harassment or violence complaints within seven days of receiving a complaint; ensuring that employees receive harassment and violence prevention training; and reporting annually to the federal Labour Program on harassment and violence in the workplace.

What can employers do to prevent harassment and toxic environments developing in the first place?

First, take complaints of harassment seriously. Even if they are not found to be supported when investigated, keep records of the complaints on file so you are able to recognize patterns if similar complaints are lodged. To use our Prime Minister’s misstep, it is best for employers to maintain a neutral message pending the results of the investigation.

Bring the complaint, regardless of how minor, to the attention of the manager who is the subject of the complaint or allegation. You cannot expect improvement if they are unaware of the complaint.

For employees in every company, big or small — just like those working in Rideau Hall — there is strength in numbers. What might appear to be minor or negligible when coming from one person, can gain momentum or be taken more seriously when coming from a group. Discuss the department issue with your colleagues and, if your experience is shared, consider lodging complaints simultaneously. They are more likely to get attention, and faster resolution.

Got a question about employment law during COVID-19? Write to Howard at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.