Canadian Employment Law Today

Canadian HR Reporter, 2020 evening. The next morning, the worker awoke to find the manager beside her on the bed in his boxer shorts. The worker was fully clothed, but the manager had put her hand inside his shorts to touch his penis. He was also kissing her and blowing into her cheek and ear. The worker tried to leave the hotel room, but the manager blocked her and tried to apol - ogize. She eventually pushed past him and left. The manager apologized to the worker by text, but when they were back at work, he car- ried on as normal. At one point, the manager got into the vehicle the worker was driving to deliver parts and she asked him if he was "just going to continue acting as if nothing hap - pened" and why he thought it was OK. The manager repeatedly said he had been really drunk and he was sorry — which the worker recorded on her cellphone — but the worker replied that he was supposed to be "a trusted individual" and she couldn't concentrate at work because of it. Sexual harassment complaint The worker contacted an HR representative, who offered to talk to Cooksville's general manager. The worker took a day off on April 4, telling the HR representative that "none of this situation is comfortable for me. I just see it as my word against his and that I'm just a measly parts driver who now has become an imposi - tion and a liability. I'm afraid for my job, too." The worker consented to involving the general manager and said she could "use some time away" from her manager but couldn't afford to call in sick. The matter went to the HR and culture direc - tor of Humberview Group, the parent compa- ny of Cooksville and other dealerships in the area. She and the general manager met with the worker, who asked if she would accept an apology from the manager and provided in- formation on the employee assistance pro- gram (EAP). Cooksville gave the worker a week off with pay "to allow her time to herself" and to al- low the HR director to interview the manager. The manager said he and the worker were "two buddies hanging out that got too drunk" and he had no recollection of assaulting her. The HR director didn't ask him if he had put the worker's hand on his penis as she believed that it wasn't her place to ask. The worker was also asked to give a detailed account of the incident. The HR director deter - mined that there was a lot of alcohol involved the night of the incident and that she wasn't in a position to determine whose version of events was accurate. Less than 30 minutes after the worker emailed the details of the incident — on the same day the manager was interviewed, April 8 — the HR director emailed her back to say the investigation had been completed and Hum - berview would "like to accommodate your re- quest to report directly" to another manager. This upset the worker because she didn't think they could have conducted an investigation in such a short time and felt they had put all of it on her — trying to make it work with her manager, requesting to report to a new man - ager and taking time off to avoid her manager. Silence from management The worker returned to work after one week off and reported to a different manager. Her origi- nal manager had been told to stay in his office, but the company didn't check on him to en- sure he did, making it possible for the worker to encounter him as she loaded parts for de- livery — Cooksville was a small dealership. As time passed, the worker became more frustrat- ed because she felt nothing was being done to address the situation — she hadn't heard from anyone in management since April 8. The worker applied for a shuttle driver job at Humberview Volkswagen, another dealership under the Humberview umbrella. She won the job and started there on May 16, 2016, earning $1 an hour less than at Cooksville. On June 16, the worker emailed the HR di - rector saying her emotions had been triggered by a seminar about company values. She said she hoped Humberview Group would inves- tigate further and she missed her job and cus- tomers at Cooksville. The HR director didn't respond until the worker sent another email asking about who she could speak to about the lack of action and the pay cut she took to move to Humberview Volkswagen. The HR director said that the company had investigated the worker's allegations and con - cluded that it was a "classic 'he said/she said' situation as the worker was "the only one who recalled sexually pleasuring" the manager. She added that the company had accommodated her by moving her to report to a different man - ager and then helping her find another job, which it had advised paid less. The director added that if she still felt troubled to consult the EAP. The worker felt the HR director's response was "like a slap in the face" as she had no con - trol over what the manager had done to her. She filed a human rights complaint alleging that Cooksville and Humberview discriminat- ed against her on the basis of sex and disability. The tribunal found that Cooksville was aware of the allegations the worker made about the manager's conduct and the dealer - ship, along with Humberview, had workplace violence and workplace harassment policies in place that outlined the steps in filing and in- vestigating complaints. However, the evidence indicated that the HR director didn't consult or follow the policies in her investigation. The tribunal also found that the HR manager didn't properly address the information she had. It was more than just a situation with a lot of alcohol and an allegation of inappropriate conduct. The worker's account was detailed, the manager's discussion of the matter and apology was recorded by the worker and the manager wasn't directly asked about what had happened. Although the HR director "took on the role of in - vestigator," she didn't conduct a proper investiga- tion, said the tribunal. In addition, the company was insensitive to the worker, dismissing her ongoing concerns and taking the position that it had done all it needed to do by reassigning her to a different manager and then helping her relocate to another dealer - ship at a lower wage. This had the effect of wors- ening the worker's experience as an employee of Cooksville and Humberview and poisoned her work environment, the tribunal said. The tribunal determined that Cooksville breached the worker's right to employment that was free from discrimination and a poi - soned work environment. Cooksville was ordered to pay the worker $55,000 for injury to her dignity, feelings and self-respect and $2,904 for the difference in her wage for the 66 weeks she worked at Humberview Volkswagen after she felt forced to transfer. For more information, see: • AB v. 2096115 Ontario Inc. c.o.b. as Cooksville Hyundai, 2020 HRTO 499 (Ont. Human Rights Trib.). 6 | | November 4, 2020 November 4, 2020 « from ONTARIO CAR on page 1 Company didn't ensure manager stayed away from worker Cases and Trends Cases and Trends Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features such topics as the debate over sick notes, unpaid internships, and employee parental obligations with the reopening of schools. You can view the blog at www.employmentlawtoday.com.

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