Canadian Employment Law Today

February 19. 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS FEBRUARY 19, 2014 In This Issue PM40065782 CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS 3 4 8 2 ASK AN EXPERT: Searching employee's locked desk • Employee's sick child CASES AND TRENDS: Don't deduct pension benefi ts from dismissal damages CASE IN POINT: Ignore harassment at your own risk YOU MAKE THE CALL: CNR railroaded out of job for harassment City employee gets $25,000 for 'half-hearted' handling of harassment complaint Employee dealt with ongoing harassment after supervisor initially gets slap on the wrist AN ONTARIO employer must pay more than $25,000 for failing to properly han- dle an employee's sexual harassment complaint, an arbitrator has ruled. The employee, who was referred as AB for privacy purposes, was an in- spector for the Hamilton Street Railway (HSR), a public transit service in Hamil- ton, Ont., with 23 years of service. Her duties included communicating with transit operators in the fi eld to ensure ef- fi cient operation of the service. AB was the only female inspector with the HSR. As the only female inspector, AB was concerned about proving herself and cracking what she believed was a tight- knit group of male inspectors. However, she soon faced diffi culty. Not long after she became an inspector, AB was con- tacted by a supervisor to ask how things were going. The supervisor also asked what she was wearing, and when she replied "my uniform," the supervisor asked her what she was wearing under- neath it. AB hung up and the supervisor didn't make any further inappropriate comments to her. Vulgar emails began campaign of harassment In December 2006, AB began receiving emails from her supervisor that she con- sidered pornographic. She was shocked by their content, but didn't raise the issue with him initially because she thought she received them by mistake. However, in early 2007, she received more pornographic emails and told the supervisor she didn't appreciate them. The emails stopped for awhile but re- sumed in July 2007. Over the next few months, AB re- ceived what she called a "barrage" of obscene emails from her supervisor. She told him she would fi le a formal complaint if the emails continued and the supervisor chuckled. However, the emails stopped. In early 2008, the supervisor stepped up behind AB while she was seated at radio control and massaged her shoul- ders. AB pulled away and asked him not to touch her. Another inspector was there and witnessed the incident. In April 2008, AB sent her supervisor two emails relating to the shift sched- ule and the supervisor responded with emails containing profanity. Also in 2008, HSR employees received new hats as part of their uniforms. One day, AB was working with two other inspectors when the supervisor asked her where her hat was. AB replied that it was at home, and the supervisor sug- gested she and her fi nancée must have found a use for it in the bedroom. He then imitated AB having sex. AB asked him to stop multiple times, but he didn't, only stopping when AB splashed water on him. On one occasion in early 2009, the supervisor tried to massage AB's shoul- ders in the lunchroom. AB pulled away, knocking over items on a table, and told him to leave her alone. On another day, the supervisor tried to massage AB's shoulder's while she was working and she kicked out her leg behind her, hit- ting the supervisor in the groin. Another employee who was present told the su- pervisor "You deserved that. She asked you to leave her alone. Why don't you listen to her?" Not long after AB became an inspec- tor, a co-worker entered the control room and called out "Lucy, I'm home." AB — who had red hair — considered the reference to redheaded actor Lucille Ball an insult and told the co-worker not to call her that. The co-worker stopped, but the same supervisor began calling her "Lucy," including in emails, despite AB's requests for him to stop. In late summer 2010, AB told her su- pervisor she might have nerve damage affecting her hands and she might need Continued on page 6 Continued on page 7 Scratching car just cause for dismissal AN ARBITRATOR has upheld the dismiss- al of a Nova Scotia home care support worker who scratched the car of a cli- ent's neighbour. Geraldine Campbell, 52, was a home support worker for the Inverness Coun- ty Home Support Agency, a provider of home care support in Inverness County, N.S. Campbell's duties included going to the homes of people who required as- sistance in their everyday lives, such as personal care, housekeeping and meal preparation. In March 2011, Campbell was sus- pended for fi ve days after sending a Facebook message to a client's friend. In March 2012, Campbell fell asleep while at the home of an elderly client. The cli- ent fell down and Campbell didn't re- spond, so the client requested Campbell no longer be assigned to him. A next- door neighbor agreed to help with the client's care until another home support worker was able to take over. On the night of April 13, 2012, Camp- bell went to the client's residence — which was less than a block away from her own place — and scratched the car of the next-door neighbour's husband. The neighbour's husband saw her and yelled at her, at which point she ran away. He caught up with Campbell and picked up a bag she dropped, discover-

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