Canadian Employment Law Today

suspended the supervisor with pay during the investigation — including examining video surveillance footage of the station where the incident took place. e supervi - sor said he was shocked at the allegations, saying everything between him and the worker was consensual and she had never indicated "by body language, words or ac - tions that she was not in support of what was happening." e supervisor told the HR consultant who was investigating there were sexual pictures of the worker online — which the worker had denied — and showed them on his phone. He also said "he did not want to colour her black — without making it seem (the worker) was an escort out of work." e TTC told the supervisor that his behaviour on TTC premises with a subordinate was a violation of TTC policies. Rather than be fired, the supervisor resigned his position. However, he filed a complaint of his own that the worker's sexual harassment allega - tions were in bad faith. e TTC interviewed the worker and asked her to view the surveillance video, which showed the bus stopping beside a wall at the station, the supervisor standing be - side the worker in the driver's seat, and the supervisor looking around him. Soon after, the worker could be seen reaching towards him. e worker found it difficult to watch, but the HR consultant told her if she didn't watch, she would accept the supervisor's ex - planation of events. e worker admitted that she had some provocative pictures online and she ran a party business, but she wouldn't try to pick up or have a sexual relationship with a su - pervisor. She denied flirting with him or showing him pictures, and didn't know how he got her phone number — she thought it could be through the flyers or social media. She also said she wasn't reaching towards the supervisor in the video, but instead was pushing him away. Investigation found consensual sexual misconduct e TTC concluded that the worker and the supervisor had "engaged in consen- sual sexual behaviour on a TTC vehicle, while on TTC property and during work- ing hours." It also found the worker had provided misleading information and made a sexual harassment complaint in bad faith — and violated its respect and dignity policy, workplace violence policy, and code of conduct, and terminated her employment. e arbitrator noted that the worker was a single mother of three children without much seniority, so she was in a vulnerable position compared to the supervisor and the incident should be viewed in that context. e arbitrator found that the supervisor "placed great reliance on what he claimed was a sexual relationship with the (worker) that pre-existed" in the TTC's investigation. However, the three previous meetings be - tween the worker and the supervisor were brief and, combined with the fact the su- pervisor acknowledged they didn't see each other in the months between the meetings, there was no basis to the claim they had a pre-existing sexual relationship, said the ar - bitrator. It was also unlikely there was any texting or calling after the second brief meeting, and the arbitrator believed the worker's ac- count that there was nothing of the sort. e supervisor's exaggeration of the rela- tionship between the two also hurt his cred- ibility regarding the incident on the bus. With no existing sexual relationship and the worker's consistent assertion that she wasn't interested in him, it made little sense for her to go along with the supervisor's actions on the bus. In addition, the worker's response afterwards and the power imbalance be - tween them made it believable that she had been subjected to sexual harassment. Even though the supervisor said he didn't exer- cise power in approaching the worker, his power remained throughout the encounter and likely led to the worker being coerced to the point that she did before leaving the bus, said the arbitrator. e arbitrator determined the supervisor sexually harassed the worker. e TTC was ordered to reinstate her with full seniority and compensation for lost benefits. For more information see: • ATU, Local 113 and Toronto Transit Commis- sion, Re, 2018 CarswellOnt 12619 (Ont. Arb.). Canadian HR Reporter, a Thomson Reuters business 2018 August 29, 2018 | Canadian Employment Law Today CREDIT: LOUIS.ROTH/SHUTTERSTOCK ABOUT THE AUTHOR JEFFREY R. SMITH Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information.

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