Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends about her tan and jokingly asked if there were any condoms in the cars she was cleaning. A short time later, the worker was inside an RV cleaning it when the owner entered the vehicle and said she needed a massage. e worker laughed it off, but she later testified the owner reiterated that she needed a mas- sage and told her to lie down on the bed. e worker replied that she needed to finish her work and get home to her son — the worker was a single mother with a young son, and this was her first job since her child was born. However, according to the worker, the owner was persistent and started rubbing her leg, telling her she could finish cleaning the RV later and to lie down for a massage. e worker told him no once again, but re- lented out of fear and anxiety and lay down on the RV's bed. e owner started rub- bing the worker's shoulder and she jumped up, but the owner then made a comment about her underwear. e worker testified the owner then grabbed her waistband and looked down her pants. Her phone then rang and she quickly exited the RV. e worker reported the owner's behav- iour to the owner of the second business in the lot, Mr. S., and said she was going to re- port it to the police. A few days later, the first owner apologized to her and Mr. S. told her they could work things out without involv- ing the police, saying the first owner wanted to give her an RV to live in and pay for three months' rent. e worker returned to work for one day, but the owner kept coming in and out of the RV when she was cleaning, which made her uncomfortable. She left work and didn't re- turn. e worker filed a human rights complaint for sexual harassment on July 17, seeking an apology and compensation for lost wages and damage to her mental health. Four days later, Mr. S. offered her some cleaning work, which she accepted. While she was working, Mr. S. told her that his friend wanted to get to know her the way her employer's owner "wanted to get to know her." A couple of weeks later, Mr. S. again con- tacted the worker to offer her work. e worker declined, but communicated with him over a period of one week regarding the human rights complaint. According to the worker, Mr. S. kept trying to minimize the incident, saying it wasn't a big deal and the owner didn't know any better. He eventu- ally offered the worker $500 if she dropped the complaint and resolved things between them. e worker said $500 wasn't enough and she also wanted a guarantee she wouldn't be fired, as she was still considering going back to work. She met with Mr. S. in person and refused to sign a settlement agreement with the $500 payoff. A short time later, Mr. S. increased the settlement offer to $800, which the worker accepted. e worker met with the owner and signed the agreement after accepting the money. e agreement stated that in exchange for the $800, the worker would "discontinue any and all actions against (the owner) and or (the company) including com- plaint with B.C. Human Rights Tribunal." e next day, the worker texted Mr. S. about returning to work, but he responded: "Work? What work? Work there? Where's there — there is there." e worker felt she was being mocked and never returned to work for either Mr. S. or the owner. She in- formed the tribunal that she wanted to con- tinue with the complaint, which the owner challenged because she had signed an agree- ment stating she would drop it. e tribunal recognized that the allega- tions of sexual harassment were serious and accepted the worker's claim that she suffered from depression and anxiety because of the harassment. Conversely, the language of the settlement agreement was clear that both parties intended to resolve the complaint, said the tribunal. However, the tribunal found there was "an unequal power dynamic between the par- ties." e worker was relatively young and was a single mother depending on her in- come from her job to support herself and her child — as it was, she was receiving income assistance and living with her father. She was suffering from depression and anxiety stemming from the harassment at the time the settlement agreement was proposed to her and she testified she was confused and not thinking clearly. Meanwhile, the owner was a 62-year-old who was the president of his own company with the power to hire and fire, said the tribunal. "In my view, there is a large power differ- ential between these two parties, which was exacerbated by the challenges that the em- ployee was facing during the relevant time- frame in respect of her mental health, her finances, and her housing," the tribunal said. e tribunal also found the worker was alone with the owner when she signed the agreement and while she had some legal ad- vice, she wasn't given the opportunity to re- view the actual agreement or possible reme- dies under the B.C. Human Rights Code with her advocate. As a result, the worker didn't receive proper advice about the significance of signing the release, the tribunal said. Finally, the tribunal found the agreement was "substantially unfair," as the employee only received $800 for withdrawing her human rights complaint — much less than what she would likely receive for a successful complaint in addition to the lost wages from not returning to work. e worker wanted reassurance she would still have a job, but there was no mention of continued employ- ment or compensation for lost wages in the agreement. e tribunal determined the worker's complaint could proceed — first through mediation and then in a hearing if the me- diation was unsuccessful. e tribunal noted that the worker's failure to pay back the $800 in order to pursue the complaint could be resolved as part of the negotiation or any award. See e Employee v. e Company and the Owner, 2017 CarswellBC 3445 (B.C. Human Rights Trib.). 6 | January 17, 2018 Agreement hurt by power imbalance between the two parties « from SETTLEMENT on page 1 pervisor worked in a position of trust, fre- quently worked without supervision, and was responsible for operating the store in- dependently and ensuring other employees followed the employer's policies. e Court of Appeal was particularly influenced by the fact that the supervisor refused to take re- sponsibility for her misconduct throughout the employer's investigation and continued to deny the misconduct. e Court of Ap- peal found her ongoing dishonesty fractured the trust relationship and made it impossible for the employer to have any confidence that it could ever be repaired. In those circum- stances, termination was the only reason- able conclusion. It is clear that the level of discipline im- posed should reflect the context within which the dishonesty occurred. In this way, "what the lie was about" does indeed matter, and will often indicate how much damage was inflicted on the trust and confidence be- tween employer and employee. For more information see: • UFCW, Local 401 and Sobey's West Inc., Re, 2017 CarswellAlta 1612 (Alta. Arb.). • Retail, Wholesale Department Store Union v. Yorkton Cooperative Association, 2017 SKCA 107 (Sask. C.A.). Meghan McCreary, Q.C., is a partner prac- ticing labour and employment law with MacPherson Leslie & Tyerman LLP in Re- gina. She can be reached at (306) 347-8463 or mmcreary@mlt.com. Nature of employee's position a factor « from ASK AN EXPERT on page 2

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