Canadian Employment Law Today

Canadian HR Reporter, 2021 also said she knew that other women had received inappropriate messages from the worker and she felt a responsibility to junior employees who might not feel they could speak out. Others subjected to harassment A senior HR consultant with Bell Media investigated the complaints and interviewed the worker, the two complainants and two other women who hadn't filed formal complaints but said the worker had made comments to them as well. One of the other women was a production assistant and assis - tant director, first freelance and then as a full-time employee. She often worked with the worker on CTV News Channel and CTV National News and she told the investigator that from late 2013 to 2018 the worker had sent her emails, Facebook messages and Instagram messages referring to her appear - ance and calling her "bella" and "princess" that she felt were appropriate. She said she rarely responded to them and they made her feel uncomfortable and overwhelmed. At one point, she told the worker that her boyfriend didn't appreciate him sending her the messages and he apologized, saying he was "just a smitten jerk." After the complaints were filed against the worker, he sent the production assistant a message apologizing for making her feel uncomfortable at work, to which she responded with a lengthy message explaining how the numerous comments over time were annoying and asking him not to message her about her appearance anymore. The second non-complainant interviewed had worked with the worker in 2010 until she left in 2012. She returned in 2013 as a producer. She told the investigator that in 2011 she started exchanging "flirtatious and sugges - tive" Facebook messages and emails that led to a relationship she described as "sexual in the digital sphere." This continued until 2015, when things "fizzled out" after one encounter at her condominium. They ended up working together in 2017, when she made a joke that the worker interpreted as racist. He reported it to her supervisor and she apologized, but the worker didn't accept the apology and their work relationship deteriorated. Eventually, she was moved to produce the news show on nights when the worker didn't work and the afternoon news show once per week. She said she decided to reach out to management after hearing some of her female colleagues discussing the worker's messages. The worker suggested that the producer who had made the racist joke prompted the two complainants — who were friends with the producer — to file their complaints as part of a "plot to get back at him." He acknowl - edged that many of the messages he had sent to the women referenced their appearance and conceded that they were contrary to the 2013 written warning "on a strict reading," but he said he should still be able to talk or joke with his friends. He insisted that his comments were friendly compliments and that he didn't think his job should be in jeopardy for "interacting with his friends or complimenting a Facebook friend." The worker added that he stopped working with the second complainant after November 2015 and that there was no reason for her to have waited two years to file a complaint about comments he had made years earlier, other than to retaliate against him for the complaint he had made about the producer. Examples of worker's messages The women provided several examples of the messages the worker had sent to them and they advised that other female colleagues had similar experiences with the worker, so the senior HR consultant determined that the worker had committed "harassment with sexual undertones" and that he breached the code of business conduct and the workplace violence and harassment prevention policy. In addition, his attitude and repeat behaviour made him a high risk to continue his miscon - duct and retaliate against the complainants, the consultant concluded. Bell Media accepted the investigation's findings and decided to terminate the work- er's employment on March 24, 2018, for harassing women in the workplace repeat- edly since receiving the written warning. In addition, the company said that his failure to acknowledge or take responsibility for his actions was an aggravating factor in the deci- sion to fire him. The worker filed an unjust dismissal complaint claiming that his actions were not harassment and there was no cause for dismissal. The adjudicator found that the worker's actions met the definition of harassment in Bell Media's code of conduct and harass - ment policy, as one of the examples given in the policies was "commenting on someone's sexual attractiveness or unattractiveness." In addition, many of the comments the worker made were "disrespectful to his colleagues, unwanted and repetitive" and deserved serious discipline, the adjudicator said. The adjudicator noted that the worker received a written warning about such behav - iour in 2013 and he was also told by the presi- dent of CTV News that she would fire him if he did it again. There should have been no doubt to the worker that continuing to send inappropriate messages to female colleagues would have serious consequences, said the adjudicator. The adjudicator also found that there was an "inherent power imbalance" as the worker was a senior, prominent member of the news team and the women to whom he made the comments were relatively young and new to the company. "While [the worker] suggested that his comments were merely friendly compliments or harmless jokes, I note that none of the women he engaged with in this way were close to his age or enjoyed the same professional status that he did," the adjudicator said. "The result of this inequity was that the women had to choose between living with the discomfort of receiving incessant, unwanted compliments and flirtations, or confronting someone with the power to affect their career prospects." The adjudicator accepted that the complaint he made against the producer may have played a role in the complaints against him being filed but also accepted the first complainant's evidence that it was a "wakeup" call to approach HR because of something she perceived to be wrong. The adjudicator expressed concerns that the HR consultant didn't investigate the work - er's claim of a plot against him more thor- oughly and didn't provide information about the two non-complainants she interviewed to the worker, which was a breach of proce- dural fairness. However, the thoroughness of the investigation of the formal complainants and the overwhelming evidence of the work- er's misconduct were enough to support just cause for termination, the adjudicator said in upholding the termination. For more information, see: • Laurie and Bell Media, Re, 2020 CarswellNat 5204 (Can. Lab. Code Adj.). June 2, 2021 | Canadian Employment Law Today CREDIT: TASHI-DELEK iSTOCK

• Cover