Canadian Employment Law Today

Canadian Employment Law Today | 7 Cases and Trends Canadian HR Reporter, 2019 of co-workers and guests at the inn. is co- worker — who was the supervisor's sister — seemed to think she could "aggressively critique" the work of other housekeepers — others had also faced this co-worker's wrath. e supervisor — who had no training on handling harassment complaints — spoke to her sister about her conduct, but didn't issue any formal discipline. She also didn't update the worker on the complaint, and the worker claimed she continued to be subjected to the harassing behaviour. Also in November, the worker was tem- porarily separated from another house- keeper with whom she was working and she encountered a group of male guests staying at the inn. According to the worker, one of the guests gave her a few dollars as a tip and another came up to her, wrapped his leg around her, and kissed her on the cheek. When she rejoined the other housekeeper, she described the incident. e other house- keeper believed the worker seemed proud that she had received a tip, but she warned the worker that she had breached the rule that "we don't allow anyone to touch us." e other housekeeper asked her why she al- lowed it to happen, but the worker said she wasn't concerned about it. e other housekeeper reported the in- cident to the supervisor, but the worker didn't mention it. e supervisor made a note of the incident in her log, but didn't do anything further. e guests involved were never identified. Worker escalated complaint after employer's inaction After another month, in early December the worker and her mother notified the union of the unresolved harassment complaint. A union representative contacted the inn's owner, who then discussed the situation with the worker's supervisor. e supervisor mentioned she didn't think the worker was doing a very good job and didn't respond well to constructive criticism. e owner — who had been at odds with the union for some time and was upset by the union's raising of the harassment complaint — felt the complaint was the worker's attempt to save her job and suggested they dismiss her. e supervisor agreed and they terminated the worker's employment. Several months later, the housekeeper to whom the worker had described the inci- dent with the male guests ran into the work- er at a store. According to the housekeeper, the worker talked loudly about how the inn owner would have to pay her $10,000 for sex- ual harassment, to the point where the other housekeeper felt embarrassed. e union filed two grievances: one for unjust dismissal during the worker's proba- tionary period and — after it learned of the incident from evidence related to the first grievance — another for the inn's failure to investigate the sexual harassment by a hotel guest. e arbitrator found that it was likely the supervisor had some concerns about the worker's job performance and ability to receive constructive criticism, but it was not the supervisor who made the decision to terminate the worker's employment. e decision was made by the inn's owner, who was angry about the union's communica- tion about the unresolved harassment com- plaint. As a result, the decision to terminate was motived, at least in part, by the worker's outstanding harassment complaint the ar- bitrator said. Violation of OHSA and employer's policy e arbitrator also found that the behaviour towards the worker by the supervisor's sis- ter was included in the definition of work- place harassment as outlined in the Ontario Occupational Health and Safety Act — "en- gaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome" — as well as the inn's own harassment policy and, as a result, the inn had a legal obligation to investigate and keep the worker informed of the results. e act also prohibits reprisals for lodging harassment complaints. However, the arbitrator found the inci- dent with the male guests played no part in the decision to terminate the worker's employment. e worker didn't formally report the incident and the supervisor only knew about it from the other housekeeper. e owner was not made aware of it and therefore it couldn't have been a factor in the owner's decision to dismiss the worker, said the arbitrator. e arbitrator also noted there was no evidence the worker suffered any "mental or emotional damage" from the incident — giv- en her initial reaction and her attitude when she encountered the other housekeeper in the store, it didn't seem she thought it was of any concern and didn't want to report it. However, this was partly offset by the work- er's young age and the inn's duty as an em- ployer to protect young and vulnerable em- ployees under health and safety and human rights legislation — the situation the worker found herself in wasn't good and could have been worse. e arbitrator found the inn wrongfully terminated the worker's probationary pe- riod and had a duty to protect the worker as a vulnerable employee from situations that could lead to harassment. e inn was or- dered to pay the worker compensation for the early termination plus $1,000 in damages for the incident with the male guests. For more information see: • Inn and UFCW, Local 175 (Flamond), Re (May 17, 2019), D. Randall – Arb. (Ont. Arb.). « from ONTARIO INN on page 1 Owner was angry about union's communication about complaint CREDIT: DEAN DROBOT/SHUTTERSTOCK

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