Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases insisted on using his hand to brush dirt off the leg of her pants, which she hadn't noticed. Over the next little while, there were small incidents that made the worker feel slightly un - comfortable, but she didn't initially feel threat- ened. The supervisor often said how important he was at the residence and he would "dangle shifts" to her. As a result, the worker received a large amount of extra shifts, but she believed it was because she was working hard and do - ing well. However, the supervisor started calling the worker on her personal cellphone — initially to talk about work, but he soon started calling her just to talk. She hadn't given him her num - ber, but she assumed he had gotten it from her file. The worker's boyfriend found it weird that her boss was calling her so often, as the calls came almost daily and were soon accompa- nied by frequent text messages. A few weeks after the worker's start date, the supervisor gave her training in using the van for transporting the residents. As they were driving during one training session, the su - pervisor kept steering the conversation toward tongue rings and commented that he "heard it was for giving head." The worker said it was an inappropriate thing to say and the supervisor responded that he was joking. A short time later, the supervisor asked the worker to come in earlier than her usual af - ternoon shift. When she arrived, the residents and other direct care workers were gone on an outing. The supervisor said he wanted to show her where the petty cash was kept and said they sometimes used the money for outside services such as massages. The supervisor then joked he could "really use" a massage. The worker tried to laugh it off, but the su - pervisor was serious and said no one could see into the office. He lay face down on the office couch. Despite the fact that the worker felt "overwhelmed and fearful," she gave the su- pervisor a massage because she didn't want to lose her job. When the van arrived, she stopped and the supervisor got up and kissed her on the lips. Afterwards, the worker went to a bath- room and cried. Supervisor's behaviour escalated After the massage incident, the supervisor be- came bolder and started touching her at work, including groping her breasts and slapping her rear end — sometimes in front of residents as she attended to them. She often said no, but he always ignored her, so she stopped protesting. By mid-March, the supervisor began asking the worker to "do things" and to "give him head." This progressed to directions for her to perform oral sex on him three to five times per week and eventually sexual intercourse in the basement of the residence. The worker experienced a large amount of sexual abuse in the past, so when it happened at work she felt "like she had lost herself." She was emotionally numb, but she loved her job otherwise and didn't want to lose it. She also believed that if she passed her probation, her family would have medical benefits and she could transfer to another location. As a result, she stopped resisting the supervisor's advances and they entered into a "strange, seemingly consensual relationship" that continued out - side of the workplace. The worker successfully completed her pro- bationary period in late April and scored a po- sition at another ASH residence. She no longer reported to the supervisor, but he continued to text her and see her outside work, including at her home. Sometimes, she refused to see him or tried to end it, but he would remind her of how important he was at ASH and didn't ac - cept her wishes. Worker's attempt to end things led to sexual assault Things came to a head on Sept. 3, when the worker invited the supervisor to her home for dinner so she could tell him she wanted to end things between them. When she did, the supervisor became enraged, insulted her and said she could "kiss her job goodbye." When he refused to leave and continued to insult her, the worker slapped him. The supervisor responded by throwing her down on the couch and dragging her by her hair to the bedroom, where he proceeded to sexually assault her and choked her. The worker tried to scratch and hit him, but she couldn't make him stop. A few hours after the supervisor left, the po - lice showed up at her door and arrested her, saying that the supervisor had told them she had assaulted him. They released her about one hour later and she went to the hospital, where she was examined by a nurse who specialized in sexual assault and domestic violence. The next day, ASH told her that her shifts were cancelled for the foreseeable future be - cause she had assaulted the supervisor. The worker reported her version of events, which led to a two-month investigation. The investi- gation concluded that both the worker and the supervisor had engaged in unacceptable and inappropriate behaviour in the workplace and dismissed them on Dec. 7. Several months later, the charges against the worker were dropped and the supervisor was charged with sexual assault. The worker filed a complaint of sexual discrimination against the supervisor with the Ontario Human Rights Tribunal. The tribunal found the worker to be "a credible and reliable witness who told her story in a very straightforward and consistent manner," while the supervisor didn't attend the hearing and didn't contradict the worker's allegations. As a result, the tribunal deter - mined that the worker had been subjected to sexual harassment and assault related to her employment, of which "no reasonable per- son would truly believe that this was welcome behaviour." "In the words of the Supreme Court of Can- ada, sexual harassment is 'unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job- related consequences for the victims of the ha- rassment,'" said the tribunal in finding that the supervisor violated the worker's rights under the Ontario Human Rights Code. The supervisor was ordered to pay the work- er $170,000 in damages for injury to dignity, feelings and self-respect that stemmed from his sexual harassment and assault. For more information, see: • NK v. Botuik, 2020 HRTO 345 (Ont. Human Rights Trib.). « from SEXUALLY HARASSED on page 1 Supervisor often reminded the worker about how important he was CREDIT: VLADANS iSTOCK

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