Canadian Employment Law Today

August 29, 2018

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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TTC worker fired for bad-faith harassment complaint reinstated by arbitrator Supervisor maintained there was a pre-existing consensual sexual relationship, but TTC should have taken closer look at power imbalance and credibility BY JEFFREY R. SMITH A Toronto transit worker who was fired for inappropriate sexual misconduct while on duty and then filing a bad-faith sexual ha - rassment complaint against a supervisor has been reinstated by an arbitrator who found she was in fact a victim of sexual ha- rassment. e 35-year-old worker was a bus driver for the Toronto Transit Commission (TTC), hired in 2007. She was a divorced, single mother with three children. In February 2013, the worker was waiting at an intersection in downtown Toronto for her partner to pick her up after work when she encountered a TTC supervisor. She commented that it was nice to see a black person in a supervisory position and they began a conversation while she waited. She didn't recall saying anything of significance, but according to the supervisor the work - er was flirting with him and gave him her phone number. About one month later, in March 2013, the worker and the supervisor crossed paths again, this time outside a subway sta - tion where the worker was sitting in a booth waiting for a streetcar. She was doing modi- fied work collecting material from street- cars and putting it into garbage bags. Ac- cording to the worker, the supervisor tried to pick her up by telling her she was sexy and he wanted something sexual with her, but the worker politely refused — she was dating a woman. She also felt it was inap - propriate for a supervisor to hit on her. However, according to the supervisor, they had a conversation that was sexual in nature, showed each other pictures on their phones, and discussed a threesome with the supervisor's wife. He said the worker gave him a flyer for her party business — in which she was known as Miss Sexy. He also said af - terwards they exchanged sexually-themed text messages, but never met outside work. He eventually decided it was going nowhere and he didn't want his wife to find out so he blocked her number. e worker denied ex - changing any texts with him. e worker encountered the supervisor a third time in the summer of 2013 at a TTC office. e supervisor said the worker gave him another flyer for her party business but nothing of a sexual nature occurred. e worker couldn't remember if she gave him a card, but said it was he who had asked her about her business. e two had no further contact until Oct. 26, 2013, when the worker was driving a bus in the rain. e windshield wiper blade on the bus wasn't working and the worker couldn't see out the window, so she called transit control and was told to see the su - pervisor at the subway station on her route. She pulled into the station and the supervi- sor happened to be the one from the previ- ous encounters. Close encounter on bus e supervisor checked the wiper and boarded the bus after passengers had disembarked. He asked the worker about her parties and she give him another fly- er, after which they looked at pictures on her cellphone. According to the worker, the supervisor asked her to see dirty pic- tures of her, but she said she didn't have any. He asked her to go to the washroom and take some if she wanted to go home early, but she refused. e supervisor directed the worker to move the bus over against a wall while they waited for a service person to arrive. After she did so, the supervisor said he felt hot in the bus so he started unzip his rain jacket, parka, and windbreaker as he stood beside the driver's seat. He told the worker he was aroused because of the conversa - tion topic, to which he claimed the worker said, "oh yeah" in a flirtatious manner and reached over to him. He unzipped his pants and took out his penis, which he said the worker touched. He then asked her to kiss it but the worker refused, saying it wasn't hygienic after touching the bus. e worker then saw the service person arriving and he pulled away from her, pulling his jacket over his crotch as the service person entered the bus. However, according to the worker, she was shocked about his request to see dirty pictures of her. She recounted that the su - pervisor said he wanted to have sex and a threesome with her, and was standing over her as she sat in the driver's seat. She said he pushed himself on her and tried to get her to touch his penis, but she kept saying no and denied reaching over to him. When she continued saying no, he stopped. e supervisor wouldn't permit the worker to leave because he said he needed a relief driver there to move the bus, but the worker pointed to a driver nearby and he al - lowed her to leave. After the worker left the bus, she spoke to a co-worker and told her what had hap- pened and the co-worker told her to report the incident. After she went home, she was emotional — she had been subjected to sexual assault when she was 12 and 14 years old — and eventually told a union represen - tative about the incident. e worker was off sick the next two days, but an assistant manager called her and told her she should report the incident. e worker filed a report and the TTC re - ported the matter to police, who took a statement from the worker. A short time later, the supervisor's wife contacted the worker through social media to discourage her from proceeding with her complaint. e TTC investigated the incident — and 4 Canadian HR Reporter, a Thomson Reuters business 2018 CASE IN POINT: SEXUAL HARASSMENT SEXUAL HARASSMENT is not something to be taken lightly by employers. It's especially important to get all the facts on workplace harassment if it involves employees between which there lies a power imbalance. In such circumstances, even what seems like a consensual relationship may involve fear and coercion — something those in a position of power should keep in mind when involved with a subordinate. And employers should consider that context when investigating and determining discipline for sexual misconduct on both sides. BACKGROUND

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