Canadian HR Reporter

CANADIAN HR REPORTER March 7, 2016 8 NEWS RECRUITING FINANCIAL PROFESSIONALS? O er positions to over 200,000 Members Highly targeted advertising Immediate matching resume database access FOR MORE INFORMATION, cpacanada.ca/CPASource TELEPHONE•416 204 3284•EMAIL•TGardiner@cpacanada.ca 14-126a_EN_CPAsource_fullpagead_9.625x7.indd 1 1/5/2016 3:24:31 PM Casual culture no excuse for harassment Hugs, comments lead to award of $15,000 for self-employed real estate broker BY SARAH DOBSON FRIENDLY, casual workplaces do not excuse sexual harassment, even if the affected person is self- employed and does not immedi- ately complain. ese were a few of the take- aways for employers in a recent Human Rights Tribunal of On- tario case involving a real estate brokerage firm. Adria Panucci was a self-em- ployed commission salesperson working under the supervision of Ronald Stockdale, broker of re- cord at Seller's Choice Stockdale Realty in Brantford, Ont., from 2007 until she resigned in late 2012. e relationship apparently took a turn in 2012 when Panucci alleged Stockdale started making comments about her appearance. She said he asked her to spend more time with him, drink wine with him and give him hugs. e agent also said he touched her shoulder in a caressing manner and tried to kiss her. A co-worker told Panucci she had similar encounters with Stockdale. Panucci also said she told the supervisor his attentions were unwelcome and she wanted him to stop. After this, Stockdale was less helpful at work, according to Pa- nucci, who eventually resigned. Stockdale then sent her several letters requesting repayment of monies allegedly owed to the brokerage. Stockdale said he ran his busi- ness in an informal way, and de- scribed his style as casual and friendly. He said he tried to en- courage Panucci in her work and mentored her in trying to improve her sales. Stockdale said he paid her compliments and tried to boost her confidence, but he did this for all the agents. He also agreed they had hugged but denied the agent ever told him he made her uncomfortable, un- til Panucci and her husband met with him before she left. In the end, the tribunal ordered Stockdale and his brokerage to pay $15,000 for violations of Panucci's right to be free from discrimina- tion and injury to her dignity, feelings and self-respect. They also were required to implement a policy aimed at preventing and addressing sexual harassment. Self-employment Despite being self-employed, Panucci was still covered by hu- man rights legislation, said the tribunal, as it concerned a matter "with respect to employment." e fact that Panucci wasn't a traditional employee was not a bar to her claim, said Daniel Pu- gen, partner at Torkin Manes in Toronto. "e takeaway is if you're work- ing for a company, whether it's as a contractor of self-employed com- missioned sales agent, it's going to be difficult for an employer to rely on that technicality to dismiss a claim," he said. "Human rights violations can capture relation- ships that are beyond the T4 pay- roll employee." It's a good reminder for em- ployers, said Barry Kwasniewski, partner at Carters Professional in Ottawa. "Even if they hire people, for whatever reason, not as employ- ees but on an independent con- tractor basis or on a self-employed basis, if they're actually providing services… in the premises of the employer or under the direct con- trol of the employer, then the hu- man rights laws may apply." It's an employment-like rela- tionship and the tribunal and the courts have taken a very broad view with respect to relation- ships that fall within the ambit of the Ontario Human Rights Code, said Abdul-Basit Khan, partner at WeirFoulds in Toronto. "One could have argued on her behalf that even if it didn't fall into employment, it fell into contracts because there is a prohibition in the code against discrimina- tion on the basis of protected grounds in the entering into with contracts." Culture Workplace culture was also a fac- tor in the case, as Stockdale de- scribed it as casual and informal, calling people "beautiful" and sug- gesting they go on a cruise togeth- er, for example. But these, "more likely than not, had an unintended effect on some recipients," said the tribunal. Employers need to be aware that comments on physical at- tributes, particularly if they are persistent, may well be viewed as workplace harassment. And an employer that tolerates a work- place culture that allows such comments to go unchecked will be at greater risk of code harass- ment claims, said Kwasniewski. "What an employer may con- sider as a casual and friendly at- mosphere, an employee may think otherwise. The employee may think it's not a casual and friendly atmosphere — it's an atmosphere where the employer takes undue liberties with their employees. So it's something that employers and managers need to be aware of." While some may consider this kind of culture "old school," it per- sists, he said. "It is still a problem, even with younger managers, if they get the impression from the people head- ing the organization that certain behaviours are acceptable in the workplace." In this day and age, hugs should not be happening in the work- place, said Khan. "You just don't want to go there, no matter what side of the equa- tion you're on — whether you're a boss, you're an employee, you're male or female, it just doesn't mat- ter — you want to avoid physi- cal contact, period, other than professional handshakes and so forth," he said. HARASSMENT > pg. 9 "You want to avoid physical contact, period — other than handshakes."

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