Nearly five years following the start of the #MeToo movement, courts, administrative tribunals, and arbitrators are cracking down on sexual harassment in the workplace. See also: Employers May Terminate for a Single Incident of Harassment and Employment & Labour – Top 10 Cases of 2021.

In Yaschuk v Emerson Electric Canada Limited, 2022 AHRC 62, the Human Rights Tribunal of Alberta (the “Tribunal”) handed down a record-breaking $50,000 general damages award to a complainant following years of ongoing workplace sexual harassment and an inadequate investigation.

Background

The complainant worked for Emerson Electric Canada Limited (the “Employer”) in the human resources department over a period of three years. Throughout the course of her employment with the Employer, the complainant was subjected to ongoing inappropriate sexual commentary and behaviour from her direct supervisor, the human resources manager (the “Manager”). The complainant ultimately reported her Manager’s conduct to the Employer’s vice-president of human resources (the “Vice-President”).

The commentary and behaviour that formed the basis of her complaint included:

• The Manager repeatedly asserted his power and influence over the complainant’s tenure and referred to her as a “credenza.”
• When the complainant separated from her partner, the Manager’s behaviour escalated to include sexually suggestive comments and flirtatious behaviour. On one occasion, the Manager expressed his desire to have an affair.
• The Manager invited the complainant to view a video clip that contained sexually explicit content.
• The Manager routinely made intrusive inquiries about the complainant’s dating and sex life.
• When the Manager learned that the complainant reconciled with her partner, his flirtatious attitude turned to anger. He would not talk to the complainant, but instead belittled and humiliated her in front of her colleagues.

Following the complaint, the Manager terminated the complainant’s employment under the guise of performance issues. Following a brief, superficial investigation, the Employer determined that the complaint was unfounded.

The complainant filed a human rights complaint with the Tribunal on the basis that she was discriminated against in her employment because of her gender, alleging that she was sexually harassed by her Manager.

Decision

Contrary to the Employer’s findings following its investigation, the Tribunal determined that the Manager’s commentary and behaviour constituted sexual harassment, describing it as “serious” and “predatory.”

With regards to the Employer’s investigation, the Tribunal noted that the Employer failed to interview many of the witnesses put forward by the complainant. Further, the Tribunal took note of the Vice-President’s testimony on cross-examination, where she admitted that she failed to read, investigate, or preserve email communications between the complainant and the Manager because she did not have “time to do that”. Overall, the Tribunal characterized the Employer’s investigation as “dismissive” and “cavalier”.

The Tribunal awarded $50,000 in general damages to the complainant to compensate for the “profound effect” the discrimination had on her, as well as the Employer’s mishandling of the complaint. She was also awarded an amount for lost wages.

Key Takeaways for Employers

1. Be Proactive. A comprehensive respectful workplace policy that is integrated into the workplace encourages a climate where harassment, including sexual harassment is less likely to occur. Employers should ensure that respectful workplace policies are in compliance with applicable legislation and that employees are provided with regular training regarding the policy and harassment.
2. Conduct a Thorough Investigation. The decision highlights the importance of conducting a comprehensive workplace investigation. Employers should be aware of their legal obligation to properly conduct workplace investigations in response to complaints of harassment. This obligation includes interviewing all witnesses and preserving relevant documentary evidence.
3. Seek Assistance. Complaints of workplace harassment, and specifically sexual harassment, are difficult to navigate. When questions arise, employers should not hesitate to reach out to their trusted legal advisors for guidance and advice. This decision also cautions employers that being “too busy” is not an excuse for failing to conduct a proper workplace investigation. Where appropriate, employers should consider retaining an experienced, trained, and impartial third-party to conduct the investigation.