Citing labour shortage, employer turns blind eye to harassment

Alberta employer ordered to pay waitress $4,000 for her pain and suffering

An employer in the labour-strapped oil boomtown of Fort McMurray, Alta., said it had no choice but to tolerate some abnormal behaviour from staff because of a shortage of workers.

Diane Carr, a former waitress at Humpty’s Family Restaurant, filed a human rights claim for sexual harassment. Carr said she had been harassed by Chris Troake, another employee at the restaurant, and that management had done nothing to curtail his inappropriate behaviour.

Carr claimed Troake had been watching her in a strange fashion and referred to her in derogatory and offensive terms. She claimed he kept an egg on his workstation with a drawing of a naked woman on it. In one bizarre incident, Troake put a breakfast sausage in his pants and chased Carr’s sister, also a waitress at Humpty’s, around the restaurant with it hanging out of his zipper.

In January 2004 Carr told the manager she was fed up with the harassment and the fact management had done nothing to curtail Troake’s behaviour. She had a meeting with the manager and told him she would quit unless he got rid of Troake and that she might file a human rights complaint. The manager called her at home later and told her not to come to work, that her shifts were covered. He also told her that she was causing problems in the kitchen and that she would have to start working the night shift. She refused. She was then told her employment was finished.

Pyarali Lakhani, the manager, testified that he had to tolerate some undesirable employee characteristics because of the tight labour market. He said he hadn’t heard any complaints about inappropriate behaviour from anyone besides Carr.

Suzanne Oldenbach, a front-end supervisor at Humpty’s, said the staff was generally co-operative with the exception of Carr. Oldenbach also said the manager had to tolerate abnormal behaviour due to the tight labour market, but was fair and accommodating and never ignored problems.

The Human Rights Panel of Alberta said there was a lot of hearsay and contradictory testimony in this case.

The panel pointed out that sexual harassment includes inappropriate comments. Actions made “in fun” are not relevant to determining whether a violation of the law occurred. Express objection need not be shown to establish that the behaviour is unwelcome where a reasonable person knew or ought to have known that it is unwelcome. The panel concluded that the restaurant did in fact discriminate against Carr. It awarded her $2,370 in lost wages and tacked on $4,000 for general damages for pain and suffering.

For more information see:

Diane Carr v. Humpty's Family Restaurant (July 21, 2006; Delano W. Tolley, Panel Chair)

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