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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February 19, 2014 6 Published by Canadian HR Reporter, a Thomson Reuters business 2014 time off for surgery. The supervisor told her sick benefi ts would cover the time off, but later in front of other employees he said, "We all know why your hands are sore. You haven't had a man over in a year, so you've had to look after your- self." The supervisor then made a ges- ture simulating masturbation. AB was embarrassed and fl ed to the washroom. On Sept. 24, 2010, AB was working dispatch with another inspector. The su- pervisor called in, with the other inspec- tor answering and putting it on speaker so he could continue to work. The su- pervisor gave him instructions and then said, "Tell that Irish skank behind you the same thing." AB confronted the su- pervisor and told him someone needed to talk to HR about his way of inappro- priately expressing himself. The super visor replied that it "works both ways." AB felt this was a threat of reprisal if she complained to HR. The supervisor repeated the remark to her before walk- ing away. Initial complaint went nowhere This incident was the last straw for AB, so she spoke to the transit supervisor, who agreed the supervisor was being demeaning and disrespectful and the HSR had been subject to claims of a poi- soned work environment for women. He assured AB the supervisor had been spoken to previously about his conduct and directed her to the transit manager. The transit director was on vacation for a week, and when he came back AB learned he had not mentioned her com- plaint. However, he said he had already spoken to the supervisor about the way he interacted with employees and, as a long-term employee, the supervisor's behaviour was the result of ignorance rather than ill intent. AB eventually met with the HSR's hu- man rights specialist, who told AB the emails alone were suffi cient to termi- nate the supervisor. AB said she didn't want anyone to get fi red, but wanted the supervisor to be moved or disciplined so he would stop harassing her. On Nov. 30, 2010, AB fi led a formal complaint against the supervisor. AB provided a written account of the speakerphone and hat incidents and the HSR conducted an audit of the supervi- sor's email contacts with AB. The super- visor admitted to the "skank" comment, sending offensive emails and calling her "Lucy." He denied making the comment and gestures related to her hat. The HSR didn't interview any wit- nesses because the supervisor admitted to violating the harassment policy. It was decided to discipline the supervisor with harassment training and a disci- plinary letter admonishing him to main- tain "a respectful and supportive work- place," though AB denied being told the supervisor would be disciplined. Few consequences for supervisor In January 2011, AB contacted HR to enquire about the results of the inves- tigation, as she was concerned about her own protection in the workplace. She was told the matter was considered resolved, but wasn't given details about the discipline. Since the supervisor was still in her department and bragged that he hadn't taken the human rights course, AB felt no discipline had been given to him. This belief was solidifi ed when the supervisor leaned over her shoulder a few days later and put his hand on her back. AB immediately told the transit manager, who spoke to the supervisor. Shortly thereafter, AB fi led a griev- ance complaining of harassment and the HSR's failure to provide a harassment- free workplace. Later, she also fi led a complaint with the Ontario Human Rights Commission. The supervisor continued to work in her department, so she switched shifts to avoid him, though their shifts still overlapped for an hour. The stress of the situation affected her health and home life, and she missed some shifts that led to her placement on an attendance management program. After some negotiations, AB and the HSR agreed to include the human rights complaint into the grievance procedure. In January 2012, AB produced 38 por- nographic emails she claimed the su- pervisor had sent, which the supervisor denied sending. A forensic audit was completed in May 2012, in which the auditor concluded the emails were fabri- cated or altered. The union hired its own computer forensics expert, who then de- termined the emails were authentic. The city took the second audit as de- fi nitive and terminated the supervisor's employment for lying about the emails, providing him with 18 months' salary. The arbitrator noted that harassment was defi ned in the Ontario Human Rights Code as "a course of vexatious comment or conduct" that the perpetra- tor ought to reasonably know is unwel- come and "the employer is ultimately liable for discrimination in employment arising from the acts of its employees." The arbitrator found the supervisor's conduct against AB — and a history of previous conduct known to the HSR — both sexualized and not, was based on the fact AB was a woman. AB made it clear to the supervisor that his behav- iour was unwanted and therefore it met the defi nition of sexual harassment. This behaviour and the humiliation AB felt as a result of it, created "an oppres- sive situation" and a poisoned work en- vironment, said the arbitrator. The arbitrator found the supervisor's comment, "it works both ways," in re- sponse to AB's statement she would fi le a formal complaint was hearsay and did not fi nd it was a threat of reprisal, but an instance AB brought forward regard- ing the denial of an overtime shift by the supervisor following the fi ling of the grievance constituted a reprisal. The arbitrator also found the super- visor was part of the "directing mind" of the HSR, and as a result it could be considered the conduct of the city as AB's employer, making the city "ulti- mately responsible" for the workplace harassment. In addition, the city didn't follow the procedure in its own harass- ment policy, by not properly investigat- ing AB's complaint and not adequately disciplining the supervisor. Also, AB wasn't kept appraised of the status of the investigation and, from her perspec- tive, there was no discipline at all. This led to a continuance of the supervisor working with AB and the poisoned work environment, which in turn led to a de- terioration in AB's emotional and men- tal state. "It is reasonable to conclude that the damage to AB's dignity, feelings and self-respect was only exacerbated by the city's half-hearted and insensitive response (to her complaints)," said the arbitrator. The city was ordered to pay AB $25,000 for violating her right to be free from discrimination in her workplace and injury to dignity, feelings and self- respect. In addition, it was required to compensate her for any sick days for which she wasn't paid that were linked to her poisoned work environment, and remove those absences from her atten- dance management plan. In addition, the city was ordered to evaluate its human rights training pro- gram and provide discrimination and harassment training to inspectors, su- pervisors and managers of the HSR. For more information see: •City of Hamilton and Amalgamated Transit Union, Local 107 (Sept. 18, 2013), K. Waddington — Arb. (Ont. Lab. Arb.). Continued from page 1 Supervisor still in department after complaint

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