Canadian Employment Law Today

6 | February 17, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends ment on Panucci's looks over time, which made her uncomfortable. Over the course of 2012, Panucci claimed Stockdale made many inappropriate re- marks to her, frequently asked her to spend more time with him, asked her to drink wine with him, and said he wanted hugs from her. He also caressed her shoulder sometimes and once tried to kiss her. Eventually the comments graduated to him asking for hugs as a condition of him helping her with her work. Panucci reported that on one occasion, she asked Stockdale for help writing a letter to address an accu- sation of fraudulent conduct. She reported that when she came to the office, he had dimmed the lights and put out wine. While she typed the letter, she said he stood behind her and caressed her hair. Co-worker had similar experience with supervisor Panucci told a female co-worker about Stockdale's behaviour and the co-worker she had had a similar encounter with him. Panucci also told Stockdale his behaviour was unwelcome and he should stop. After confronting Stockdale, Panucci felt he stopped helping her get new listings and didn't provide as much guidance. She felt she couldn't continue like that and decided to resign in October 2012. She and her hus- band met with Stockdale and he demanded she sign a promissory note to pay back more than $5,000 she had borrowed. She refused, they had an argument, and Panucci left. Following her departure, Stockdale sent her several letters seeking repayment of the money he claimed she owed Seller's Choice. She refused to pay as she felt the way Stock- dale treated her removed any obligation to pay back the money. is also led her to seek counselling for mental health conditions that arose out of her treatment by Stockdale. Panucci soon left the brokerage after she couldn't improve her prospects. She filed a human rights complaint against Seller's Choice and Stockdale, alleging discrimina- tion and harassment with respect to employ- ment because of sex as well as sexual solici- tation by a person in a position of authority. Stockdale denied sexually harassing Pa- nucci. He indicated Seller's Choice was run in a casual and informal way and he treated Panucci the same as all the other agents. He said he paid her compliments to boost her confidence, which he did with everyone. He often called people "beautiful" and told people they looked nice. He also suggested to people sometimes that they should "go on a cruise together." He agreed he hugged Panucci on a couple of occasions, once when she was grateful for an advance and once when he resolved issues with a house sale and told her "that deserves a hug." He also denied dimming the lights and setting out wine for a meeting or caressing Panucci's hair, though he said it was possible he may have put his hand on her shoulder briefly. Stockdale also denied that Panucci ever told him he was making her uncomfortable, though he said her female co-worker did and he acknowledged he had "stepped over the line" with the co-worker. He claimed he apologized to the co-worker and her hus- band and things were fine between them as they were still agents at Seller's Choice. e co-worker told Stockdale that Panuc- ci was making serious allegations against him, so he asked Panucci about it. He claimed Panucci apologized if she had done anything to upset him and didn't mention the allegations. Stockdale said he thought Panucci was upset with him because he re- fused to advance her any more money. e money Stockdale claimed Panucci owed the brokerage came from advances on sales not yet on the books, which Panucci said she needed to pay her rent. He said she asked for advances three times between May and July 2012 and denied her an advance in October, as she hadn't paid him back yet. e tribunal agreed that even though Pa- nucci was an independent contractor, the matter concerned harassment with respect to employment. ough Panucci could have worked out of any real estate brokerage, all of her work was done with Seller's Choice under Stockdale. e tribunal found Stockdale's admission that it was a casual and informal workplace and he made comments about people's ap- pearance proved Panucci was subjected to a course of vexatious comments about her physical appearance that were unwelcome. ough Stockdale may have thought these comments were positive, he should have realized they were inappropriate, especially after Panucci's co-worker asked him to stop. e tribunal also found there wasn't much to support Panucci's claims of Stock- dale caressing her hair, attempting to kiss her and persistently asking for hugs, but there was evidence of at least one occasion of unwelcome hugging — when he helped her resolve a sale and said it deserved a hug — that Stockdale ought reasonably to have known was unwelcome, said the tribunal. As for the meeting with dimmed lights and wine, the circumstances were a he-said, she-said scenario. However, Stockdale ad- mitted he may have touched her shoulder while she typed the letter and didn't explain why he touched her at all. is was another instance of "unsolicited, unwelcome physi- cal contact between (Panucci) and (Stock- dale) at a time when both parties concur that (she) was feeling very upset and vul- nerable because she was trying to resolve a problem that could have had serous profes- sional and financial consequences," said the tribunal. e tribunal determined Panucci suf- fered harassment with respect to employ- ment through vexatious and unwelcome comments and unwanted touching. e evidence indicated Panucci ended the em- ployment relationship herself as she wasn't doing well with Seller's Choice and wouldn't have continued at the brokerage even with- out the harassment, so there was no need to award damages for lost income. However, the brokerage and Stockdale were jointly li- able for harassment and were ordered to pay Panucci $15,000 for injury to dignity, feel- ings and self-respect. Because other debts and obligations were unconnected to the infringement of human rights and outside of the tribunal's scope, the arbitrator denied Stockdale's request to subtract the money Panucci owed from the award. For more information see: • Panucci v. Seller's Choice Stockdale Re- alty Ltd., 2015 HRTO 1579 (Ont. Human Rights Trib.). Manager started asking for hugs and other physical contact « from REAL ESTATE on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as employee off-duty conduct, preventing workplace bullying and violence, social media in the workplace, and biometrics. To view the webinar catalogue, visit cpdcentre.ca/hrreporter.

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