Allegations of sexual harassment in the workplace are serious  and deserving of proper investigations. One Ontario company recently learned this lesson the hard way when the Ontario Court of Appeal upheld a decision from the province’s Superior Court of Justice which saw $85,000 in damages awarded to a woman for moral damages and human rights violations.

Years of sexual harassment  

The employee worked for the employer for nine years, and at the time of her termination she was performing the role of plant supervisor as well as health and safety coordinator. She was the only woman who worked in the plant. At the time of her termination she was 44 years old.

The employee worked closely with the plant’s maintenance manager (the “manager”). The employer considered the manager to be irreplaceable. During the original trial, the employee outlined what the trial judge noted to be “just a few” of the instances where the manager subjected the employee to sexual harassment. They included:

• He would stare at her breasts and purport to take a picture of the
• He told her (another employee, an independent contractor who had done work for (the employer) and with       whom (the employee) had had a “romantic relationship”) had an “anaconda” in his pants and she should date him;
• He said the “girls”, referring to her breasts, looked “good”;
• He referred to their private parts as their “little friends”;
• He described “bunny ears”, meaning her feet up behind her ears (as a sexual position);
• He kept telling her she needed to get “laid”, or needed “a little pounding”, asking if she was “getting any”;
• He told her how another employee had “the best body;
• A particularly gross example of this “locker room talk” related to her request to have him make a forklift attachment. When she later saw him with something with a chain on it, which appeared to be what she had asked him to make, he told her in fact it was just a device that he was going to put her feet in to pull over her head so he could “get at her”. She said she felt like “a piece of meat”.

During a production meeting on July 14, 2011, the employee raised a legitimate safety concern. She was unaware that at this time the employer had decided to terminate her employment. Her manager, who knew that, demeaned and belittled the employee in front of others at the meeting. The employee left the meeting in tears. She then made a complaint of sexual harassment with the employer’s assistant general manager (the “assistant GM”). In the resulting investigation, the assistant GM heard from the manager but not the employee. He did, however, know that the employee suffered from clinical depression and was being medicated.

Termination

The employee was terminated without cause on July 19, 2011. She responded by filing a wrongful dismissal claim, which included a claim for moral damages for the way she was treated while the employer prepared to terminate her. She also filed for general damages under the Ontario Human Rights Code due to the sexual harassment she suffered at work.

During the trial the employee shared evidence about the impact of the dismissal upon her. She was placed upon medication for anxiety, was shaking constantly, and suffered migraines, chest pains, and sleep disturbance.

Hefty damages awarded at trial

At trial the judge saw no evidence indicating the employee had performance issues at work. After determining there was no evidence of just cause, the trial judge ruled the employee had been wrongfully dismissed and awarded her damages equivalent to a ten-month notice period. The trial judge also awarded the employee $60,000 in moral damages stemming from the manner of her dismissal and another $25,000 in human rights violates due to the employer failing to properly investigate her complaint.

The employer appealed the decision, submitting that the amount of damages awarded should be reduced. The employer accepted the trial judge’s findings of fact, but argued the damages were too high because they included pre and post-termination conduct that were not factors in the employee’s termination.

The Court of Appeal issues its decision

The court determined the amount of damages on their own were not high enough to warrant intervention on appeal. The employer also submitted that the damages resulting from the Human Rights Code violation should be subtracted from the moral damages award because both awards came out of the same conduct. The court rejected this argument, explaining that the moral damages were a result of how the employee was treated during her termination. Meanwhile, the award for violations of the Human Rights Code are meant to compensate the employee for the loss of her “right to be free from discrimination and the experience of victimization.” The fact that both of these awards came out of the same series of actions was not relevant.

The employment team at HMC Lawyers has the experience and knowledge to help you in the event you have been wrongfully dismissed from your employment. We have negotiated settlements for clients without going to court, and also look towards mediation or arbitration as avenues towards settling wrongful dismissal disputes. Please call us at 1-800-480-3534 or reach us online to schedule a consultation. We represent clients in Calgary, Alberta and the across Western Canada.