Alberta Human Rights Tribunal Awards Record Damages for Sexual Harassment

The human resources professionals employed by any organization are meant to serve the interests of both the employer and the employee. They help protect the interests of the organization by ensuring that the company is meeting its requirements with respect to the treatment of employees, as well as protecting employees who may be facing difficult situations at the workplace, among many other functions. For example, if an employee is dealing with mistreatment by a colleague or a supervisor, they should be able to speak freely to their human resources department in order to effectively manage the situation, address problematic behaviour, and protect the employee’s wellbeing.

It is possible that this reasoning contributed to the Alberta Human Rights Tribunal’s determination that a recent case involving a termination of an employee after experiencing sexual harassment at the hands of the Human Resources Manager was particularly egregious. As a result of the specific details of the case, the Tribunal awarded record-setting general damages for pain and suffering to the plaintiff.

Sexual Harassment Under Alberta Human Rights Law

The topic of sexual harassment can encompass a variety of behaviours and experiences, which can lead to confusion in the workplace. The Alberta Human Rights Commission defines sexual harassment in a work environment as follows:

Sexual harassment is any unwelcome sexual behaviour that adversely affects, or threatens to affect, directly or indirectly, a person’s job security, working conditions or prospects for promotion or earnings; or prevents a person from getting a job, living accommodations or any kind of public service.

“Sexual behaviour” can include verbal comments, electronic communications, or physical contact, such as:

• suggestive remarks, sexual jokes or compromising invitations;
• verbal abuse;
• visual display of suggestive sexual images;
• leering or whistling;
• patting, rubbing or other unwanted physical contact;
• outright demands for sexual favours; and
• physical assault.

An Employer’s Obligation Regarding Sexual Harassment

Employers have a duty to provide a workplace free from sexual harassment for anyone who attends the workplace, including employees, customers, and clients. As part of this duty, employers are obligated to investigate any claim of harassment and take action quickly, if warranted. Employers may also be held legally responsible for the actions of their employees. As such, employers are encouraged to develop and make available a comprehensive sexual harassment policy, detailing how sexual harassment is defined, and clearly outlining the process to be followed in the event of a report. If an employer fails to take proper action, an employee may make a complaint with the Alberta Human Rights Commission, so long as they do so within one year from the day after the incident occurred.

Employee Faced Ongoing Harassing Behaviour from Human Resources Manager

The complainant in Yaschuk v. Emerson Electric Canada Ltd. had originally started working with the employer in 2011 as an independent contractor hired by a third-party agency. However, the employer and the complainant entered into an agreement directly in 2013. While the complainant was classified as a contractor, she spent all of her time working for the employer, and the arrangement was treated as an employer/employee relationship. For instance, she was required to be in the office to perform her work, and to request approval in advance in order to take vacation. As such, the Tribunal found that she was effectively an employee of the company.

The employee worked as a recruiter reporting to the Human Resources Manager. At first, she had a positive working relationship with her manager and even became friendly with him outside of work. She and her common-law partner had spent time socially with her manager outside of work, and the manager became friendly with them both. As time went on, however, the employee reported experiencing ongoing and repeated sexual harassing behaviour.

The behaviour included suggestive comments about other women, sexually suggestive conversations, flirting, inquiries about her personal life, and emails containing jokes of a sexual nature. The employee reported that when she and her common-law partner split in 2013, the behaviour escalated considerably, especially the manager’s inquiries about her personal life and her sexual encounters. The manager maintained friendships with both the employee and her former partner, and they each testified that he regularly encouraged them to stay apart from one another.

The employee also testified that the manager had regularly alluded to the fact that he would like to have an affair and that his wife would not find out, as she lived in Ontario with the couple’s children. At one point, he called her into his office to show her a sexually explicit video clip, which made the employee uncomfortable. She left the office immediately and asked him to forward her the link to the video, which he did.

When the employee and her partner later reconciled, she reported that her manager became extremely aggressive after finding out during a dinner with her partner. He “threaten[ed] her, remind[ed] her of someone he had fired, and grill[ed] her, asking where she had been and with whom.”

The employee made a formal complaint to her employer about her manager’s behaviour. As evidence, she provided the link to the explicit video, other communications, and the names of witnesses. The employer did not preserve any of the electronic communications and did not interview any witnesses before concluding that no harassing behaviour had occurred. The employee’s contract was eventually terminated in July 2014.

General Damages for Pain and Suffering

The Tribunal found that the employer’s investigation into the employee’s complaint was flawed and that the employee had suffered long-term psychological effects as a result of the manager’s behaviour, and her employer’s response to it. Further, the Tribunal found that while the manager’s behaviour was an issue from the start, it became predatory after the employee split from her partner, and the employer acted dismissively and cavalierly when she complained. As a result, the Tribunal awarded general damages for pain and suffering in the amount of $50,000, in addition to over $40,000 for lost wages.

According to Canadian Lawyer magazine, the award is notable as the highest general damages award for sexual harassment in the workplace by a Tribunal in Alberta. The previous record was $35,000. This should be an indication to employers in the province that a failure to take similar reports seriously could end up resulting in a significant financial penalty.

Contact the Employment Lawyers at DBH Law in Calgary if you have experienced Sexual Harassment in the Workplace

The lawyers and staff at DBH Law rely on our quarter-century of litigation and advocacy experience to provide our clients with pragmatic, strategic, and responsive legal guidance in wrongful dismissal litigation. In our many years of practice, we have successfully litigated hundreds of wrongful dismissal disputes and regularly assist clients with employment matters including employment agreements, termination packages, and work refusals. Our litigators have represented clients at all levels of court in Alberta.

Contact us online or by phone at 403-252-9937 to discover how we can help you today.