Canadian Employment Law Today

6 | April 17, 2019 Canadian HR Reporter, a Thomson Reuters business 2019 Cases and Trends working at the facility. Michael Clendenning was hired as an excavator/loader operator at the facility in April 2016. His job involved working most- ly in the yard and other areas of the premis- es, and he took his lunch in the lunchroom with other employees. Graham's office was beside the lunchroom. New employee posted sexual jokes After Graham and a new facilities manager were hired, Clendenning felt the culture at the facility began changing and more sexu- al jokes were being told. On Oct. 4, 2016, a double-entendre sexual joke was posted on a whiteboard in the lunchroom, which of- fended him as a male. Graham had printed the joke off the Internet and had posted it with the hope it would boost sagging mo- rale stemming from recent changes at the company. However, Clendenning found it to be unprofessional. He claimed he told the facilities manager about the joke, but the facilities manager said it helped morale and wasn't a big deal. However, the man- ager later denied Clendenning came to him about the joke. A week later, on Oct. 12, Clendenning saw a joke posted on the lunchroom refrig- erator making another double-entendre about "hump day." Clendenning was of- fended again and left the lunchroom after he learned Graham had posted it. He felt women posting such jokes in a male-domi- nated workplace was unprofessional, so he said he went to the facilities manager, who was dismissive. However, once again the fa- cilities manager denied being aware of the joke and said Clendenning didn't approach him about it. Graham herself had no-one tell her the joke was offensive, though she noticed afterwards that Clendenning was quiet and didn't laugh very often. On Oct. 14, Clendenning entered the lunchroom and saw two co-workers with the facilities manager talking about anoth- er off-colour joke posted on the whiteboard. Clendenning felt it was even worse than the previous jokes and asked who wrote it, which the facilities manager responded that he did. As it was more of a visual joke, he had written it on the whiteboard for the other two employees and erased it after a couple of minutes, but not before Clen- denning saw it. No other employees were around to see the joke. On Oct. 27, Graham wrote another sex- ual joke on the whiteboard. Clendenning saw it and talked to the facilities manager, saying he was offended and it created a sexualized environment. e manager said it was "just a good laugh, not a big deal," which disappointed Clendenning. Graham erased the joke from the board after about 20 minutes. A little while later, Clendenning was in a group with other employees when the fa- cilities manager approached them asking "What is this? A circle jerk?" while simulat- ing masturbation. e others laughed and went back to work, but Clendenning said it was inappropriate and walked away. Clendenning began avoiding others in the lunchroom and eventually had trouble going into work. He developed anxiety re- quiring medication. On Jan. 18, Clenden- ning was involvedin an altercation with a co-worker where they had to be separated, and he took one month off work due to stress. He filed a workers' compensation claim for bullying and harassment by that co-worker, but didn't mention any sexual harassment. His claim was denied, but he didn't return to work at Envirogreen. Envirogreen investigated the altercation and learned that Clendenning had spread false rumours in town about the co-worker and Graham using drugs. Graham pre- pared a written statement for the investi- gation that said she had been upset about the rumour and other unflattering things other employees had told her that Clenden- ning had been saying about her. Clendenning filed a human rights com- plaint alleging that he was discriminated against in his employment on the ground of sex. He acknowledged he never asked Graham to stop posting sexualized jokes — he said he was her subordinate, which Graham and the facilities manager denied — but maintained he had spoken to the fa- cilities manager about them. Graham also said that Clendenning had once given her a ride home in mid-October 2016, but before taking her home he drove her down an isolated road and told her that he found her attractive and they would be good together. Graham told him she had a boyfriend and they had to keep a profes- sional relationship because they worked to- gether, after which Clendenning drove her home. According to Graham, Clendenning told her a second time in December they would be good together when they were alone in a supply room. Clendenning denied making the com- ments and said that in the first incident, he was only scouting out a potential hunting spot before driving Graham home. Worker kept quiet e tribunal noted that Clendenning said he didn't inform anyone in manage- ment other than the facilities manager or any other employee that he objected to the jokes being posted in the lunchroom. e facilities manager denied being made aware of his objection or that the first two jokes existed, or that Clendenning had a problem with the "circle jerk" comment. It found it wouldn't be surprising if the man- ager wasn't eager to stop the jokes, as they were boosting morale when it had been low. However, the tribunal found it unlikely the manager would have dismissed Clenden- ning had he approached him as many times as Clendenning claimed he did — it would be more likely the manager would have tried to explain the jokes were harmless and important to morale, said the tribunal. e tribunal found that the evidence indicated Clendenning didn't complain about the jokes — he was known to be a quiet person, no other management knew about the jokes, and neither the manager nor Graham said they were aware Clenden- ning had taken offense. e tribunal also found that Clenden- ning's actions may have been affected by his feelings for Graham. ough he denied the incidents Graham reported, it made no sense for him to drive her down a re- mote road to scout for hunting spots — he must have wanted to talk to her alone. In addition, the evidence was that Graham handled herself "above reproach" in the in- cidents and never claimed to perceive any issue between her and Clendenning, said the tribunal. e tribunal also pointed out that Clen- denning's workers' compensation claim for stress didn't mention any sexual harass- ment, just bullying and harassment from the one co-worker. ere was no reason Enviro- green would have known Clendenning felt offended and Clendenning's departure from the company was related to issues between him and other employees that were unrelat- ed to the fact he was male, said the tribunal in dismissed Clendenning's complaint. "I find that, while he may have been of- fended by the sexual jokes and the 'circle jerk' comment, (Clendenning) gave Envi- rogreen no reason to believe that was the case," said he tribunal. For more information see: • Clendenning v. Envirogreen Technologies and others (No. 2), 2019 CarswellBC 569 (B.C. Human Rights Trib.). « from A FEW JOKES on page 1 Worker filed a workers' compensation claim for bullying and harassment by co-worker, but didn't mention any sexual harassment. Worker didn't indicate any offense was taken

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