Text messages containing sexual references that were sent by a business owner to an employee were consensual when the two were in a relationship but became sexual harassment when the relationship ended, the British Columbia Human Rights Tribunal has ruled.
Lisa McIntosh joined Metro Aluminum, a manufacturing company in Surrey, B.C., on Feb. 25, 2008, as a delivery driver. McIntosh met Metro’s owner, Zbigniew Augustynowicz, on her first day. About two weeks later, Augustynowicz asked her to go out for a drink. Hesitantly, McIntosh agreed, expecting to discuss an upcoming business trip. However, he asked her if she would date him and she declined, pointing out he was married. Augustynowicz said he was separated.
A few days later, McIntosh agreed to exchange phone numbers and meet him for coffee before he went on vacation. During his vacation, they texted each other and talked on the phone. When he returned, they began a consensual sexual relationship.
The relationship continued for a couple of months until late June, when McIntosh learned Augustynowicz was not separated from his wife. She told him over the phone and by text message she wanted to end the relationship and only wanted to speak to him about work-related matters.
However, the owner continued to send text messages with sexual propositions, profanity and sexually provocative comments. Some of the texts in June and July 2008 called her names, asked if they could “hook up” and made suggestive comments about her body.
McIntosh told Augustynowicz in person and through texts to stop sending sexual messages because they made her uncomfortable. When he didn’t stop, she tried to ignore them but the more she ignored them, the more he texted her.
McIntosh tried telling the owner she had a boyfriend, however, this only caused him to send more rude messages. Once again, she asked him to stop but the messages continued.
In early July 2008, McIntosh sent a message to Augustynowicz saying she was willing to talk to him about how he was treating her but did not want to get back together. She testified she spoke with him in person for the last time on July 8 and only saw him occasionally in the office after that. However, a couple of days later, he sent several sexually charged messages that became meaner when she didn’t respond. The messages continued over the next two months.
Texts continued during stress leave
By early September, McIntosh obtained a doctor’s note authorizing her to take one week off for stress leave. Augustynowicz texted her during her leave asking her if she was “done working at Metro” but she didn’t reply. He sent her more messages that contained sexual references.
On Sept. 22, McIntosh decided she was fed up with the texting. She sent Augustynowicz a message asking him to stop contacting her since she felt she was being harassed. She also threatened to call the police if he sent her any more messages. She obtained another doctor’s note advising eight to 12 weeks off and she told her supervisor she had no choice but to look for a new job.
Metro issued a record of employment (ROE) on Oct. 1, listing the reason for the ROE as “illness or injury.” On March 31, 2009, the company issued another ROE stating McIntosh hadn’t returned to work and hadn’t given any new information, so it hired a replacement. Metro gave her $1,500 in “settlement pay.”
McIntosh filed a human rights complaint, claiming she was subjected to ongoing sexual harassment through the unwanted text messages that, ultimately, caused her to leave. Metro argued she had been in a consensual relationship with Augustynowicz and she consented to and continued to participate in the texting.
Employee not willing after end of relationship: Tribunal
McIntosh was not a willing participant in the text messaging, found the tribunal. Her messages after their relationship ended consisted of telling him to stop calling her names and sending her vulgar messages. None of her messages involved the sexual banter Augustynowicz was trying to continue, said the tribunal.
The fact they had a consensual sexual relationship meant there was already some sex-related texting and McIntosh had to clearly indicate the relationship was over, said the tribunal. She did so, on the phone, in person and through texts, but Augustynowicz continued to send her provocative messages. The fact she didn’t directly speak to him after July 8 also made it clear she had ended the relationship, said the tribunal.
Augustynowicz was in a position of authority over McIntosh and had a legal responsibility to ensure her workplace was free of sexual harassment, found the tribunal. He failed to do so when he continued to send her inappropriate texts that negatively impacted her working environment.
“Ms. McIntosh has proven that she was subjected to repeated comments of a sexual nature that (he) knew, or ought to have known, were unwelcome, and that detrimentally affected her work environment and led to adverse job-related consequences, including her departure from Metro,” said the tribunal.
Metro was ordered to pay McIntosh $14,493.80 in lost wages from Jan. 1, 2009 — when she stopped receiving medical employment insurance benefits — to when she returned to good health on Apr. 30, 2009.
The tribunal declined to award her further lost wages up to when she found new work on Nov. 23, 2009, as it judged her job search efforts before then to be inadequate attempts at mitigation. Metro was also ordered to pay $12,500 for injury to dignity, feelings and self-respect as well as $2,900 for McIntosh’s costs.
For more information see:
•McIntosh v. Metro Aluminum Products Ltd., 2011 CarswellBC 401 (B.C. Human Rights Trib.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit employmentlawtoday.com.
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