Canadian Employment Law Today

November 3, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Canadian HR Reporter, 2021 4 Female worker in male-dominated workplace subjected to sexual comments by supervisor, but there were legitimate reasons for termination Alberta worker gets $20,000 for harassment, but termination not discriminatory AN ALBERTA worker faced discrimination and sexual harassment from her supervisor but her failure to get a promotion and her later dismissal were not related to either, the Alberta Human Rights Tribunal has ruled. Natasha Holmes was employed as a gen - eral labourer with Waiward Construction Management, an excavating and earthworks contractor based in Edmonton. She was hired in April 2015 and at all times during her employment, she was either the only woman or one of two women on each work - site. Holmes held an occupational health and safety certificate and her National Construc- tion Safety Officer certificate, but she joined Waiward as labourer because it was a tough time in the industry. She was interested in finding a safety position, but one wasn't available with Waiword at the time she was hired. Her labourer role involved taking tickets from truck drivers, monitoring gas, running a water truck, and watching the wa - ter pump at the worksite. There were five people on Holmes' crew who shared space in a small trailer that was partitioned into the supervisor's office and an area for the crew to take breaks and eat. They gathered at the start and end of each shift for tailgate meetings and wrap-up dis - cussions. Holmes felt that the supervisor frequently "hit on" her by asking her questions about what kind of men she was into and com- menting about the idea of them dating. On one occasion, they were making small talk about the supervisor's days off and he asked if she wanted him to meet up with her. An- other time about one month into her em- ployment, the supervisor asked her about a date she had the previous night and said, "Did you f--- him?" Holmes said she felt shocked and embarrassed and simply said "no." According to Holmes, the supervisor asked her another time if she had ever had sex with her boss before — using a more crude term — in front of the crew. She was again shocked and tried to brush it off by saying yes and that it went "horribly." The supervisor acknowledged asking the ques - tion but said it was in the context of a larger conversation with another woman present who was in a relationship with her supervi- sor. However, he admitted that he has asked it after the other woman left and only asked it of her, not any of the male employees present. He said Holmes had joked in re - sponse and didn't give the impression that she was upset. Holmes acknowledged that there was often "shop talk" involving banter, but she said she didn't participate in any conversa - tions that crossed the line into harassment. The supervisor denied making any harass- ing comments, but also said he didn't recall many of the incidents to which Holmes re- ferred. Another co-worker who became friends with Holmes didn't specifically recall the conversations, but agreed that it was likely they occurred and the supervisor was "crude like that." About one week after the supervisor asked Holmes about her date, he texted her while she was at home with a message say - ing it was his personal phone. She didn't re- spond and he texted her a couple of hours later saying his work phone was dead and he was "just making sure you will be in on Monday." Holmes was unnerved and felt the supervisor was hitting on her, as there was no reason for him to text her or share his personal number. She believed the first text was a feeler to see how she would respond and the second text was an attempt to cover up that he tried to hit on her. The supervisor later explained that he had switched to a personal phone number com - pletely and it was the only way to contact him. The co-worker confirmed this. Holmes complained about other inci- dents, including the supervisor making comments about going on a trip to Mexico with her and calling her at home to say that seeing her "cute little boots" in the trailer re- minded him of her. The supervisor denied the conversation and the co-worker remem- bered it as a discussing in the context of the entire crew going to Mexico, while the co- worker said that Holmes had told her about the call and seemed bothered by it. Denied promotion to safety role A short time after Holmes was hired, the owner of the worksite agreed that a safety representative position onsite was needed. The supervisor asked Holmes about it and she expressed interest. The position required a National Safety Construction Officer cer - tificate, which Holmes had. However, the supervisor hired another woman who had been working onsite in a different capacity and had been recom- mended by the site owner. The new hire had the same certification as Holmes, but had less safety experience and her certification was more recently obtained. Holmes told the site's HR representative that she had experienced harassment from her supervisor and didn't want to go back to the site. The HR representative looked at other sites and found a location for Holmes to transfer to, but she didn't tell the foreman there why the transfer was needed. The HR representative then discussed the allegations with the supervisor, who ap - peared upset and denied harassing Holmes. He said that the whole crew was involved in the conversations and Holmes had never seemed offended. He said he didn't remem- ber all of the incidents, but remembered asking her about having sex with her boss. He also suggested that Holmes was just an- gry about not getting the safety representa- tive job. The HR representative also met with Holmes' co-worker and friend, and the two agreed that the supervisor could be difficult to get along with "especially if you are a woman." She investigated and determined that inappropriate behaviour had taken place, contrary to Waiward's harassment policy. She recommended that the supervi - sor take a training module for sexual harass- ment awareness. CASE IN POINT: SEXUAL HARASSMENT Employers have an obligation to take all reasonable measures to address and prevent sexual harassment. However, if an employee is sexually harassed, it doesn't make them immune to being terminated, as long as there were no discriminatory reasons for the termination. BACKGROUND BY JEFFREY R. SMITH The supervisor was sent to awareness training, but nothing else was done to ensure a safe workplace going forward.

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