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 When Holmes arrived at her new work- site, she learned that her shifts would be six days per week with Sundays off, which was a change from her previous position, which involved 10 days in a row with four days off. She said just having Sundays off would be difficult because she needed some weekdays off to deal with personal matters, but she was told she had to work the new schedule. On June 25, 2015, Holmes' phone rang while she was operating heaving equip - ment. She thought it was an important call from the government, so she turned off the equipment and answered the phone. The lead hand felt she didn't turn off the equip- ment properly, as she shut it down quickly without allowing it time to cool off before answering her phone. He also had noticed that she had used her cellphone repeatedly at the worksite, which he had warned her about. Using cellphones was prohibited most of the time and employees were re - quired to safely shut down equipment be- fore taking any calls. The site superintended decided to termi- nate Holmes' employment for the safety violation, as he believed it was an industry standard to do so. Holmes informed the HR representative that she was going to launch a human rights complaint, so the HR repre - sentative stopped any further investigation. Holmes filed a human rights complaint against Waiward, alleging that her supervi- sor sexually harassed her and then failed to promote her into the safety role when she didn't reciprocate, and her complaint led to her termination. Supervisor's comments, phone call were harassment The tribunal found that the supervisor's ask - ing about Holmes' sexual activity, making comments with sexual overtones, using an expletive, and specifically directing it at the only female member of the crew was unwel- come conduct of a sexual nature. The seem- ingly random call to Holmes at home to talk about her boots was also unwelcome and didn't have a work-related purpose, said the tribunal. However, the tribunal found that the co- worker's version of events supported the idea that the texts had more to do with the su - pervisor's change to a personal phone than any other reason. In addition, the conversa- tion about the trip to Mexico involved the whole crew and wasn't directed at Holmes and didn't constitute harassing behaviour, the tribunal said. The tribunal determined that Holmes ex - perienced unwelcome conduct of a sexual nature in the workplace. As a woman, her gender was protected under the Alberta Hu- man Rights Act and the harassment was an adverse impact that she suffered in the work- place that was related to her gender. This met the test for sexual harassment and gender discrimination, said the tribunal. The tribunal also found that the investi- gation was flawed, as the HR representative knew that the supervisor could be difficult to interact with and had committed some sort of misconduct. The supervisor was sent to awareness training, but nothing else was done to ensure a safe workplace free of ha - rassment going forward. "Instead of conducting a full investigation, the victim of harassment was transferred to a different and less attractive worksite, with- out full consideration of the circumstances and the effect the transfer would have on [Holmes]," said the tribunal. However, the tribunal disagreed that the decision not to hire Holmes was related to her gender or the harassment. The site owner had recommended the other candidate and there was evidence of other reasons Holmes wasn't the top candidate — the co-worker noted that she often didn't have a positive attitude, spent a lot of time on her phone, and frequently rolled her eyes when the su - pervisor spoke. As for Holmes' termination, the tribunal commented that it may have been an over- reaction, but it was in response to miscon- duct unrelated to the harassment complaint. In fact, there was no evidence that the site superintendent was aware of Holmes' com- plaint. The termination was not related to the sexual harassment and was not retalia- tion for Holmes' complaint, said the tribu- nal. Since there was no discrimination in the decisions relating to the safety job or the ter- mination of Holmes' employment, the tri- bunal didn't award any damages for lost in- come. However, Waiward was ordered to pay Holmes $20,000 in damages for the harass- ment and discrimination that she suffered. For more information, see: • Holmes v. Waiward Construction Manage- November 3, 2021 | Canadian Employment Law Today CREDIT: PEOPLEIMAGES iSTOCK ment Inc., 2021 AHRC 147 (Alta. Human Rights

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