Dismissal of teenaged housekeeper following complaint without investigating was a reprisal: Arbitrator
An Ontario inn wrongfully dismissed a teenaged housekeeper after she complained of harassment from her supervisor's sister, an arbitrator has ruled.
The now-19-year-old worker was a part-time housekeeper at the Cooper River Inn, a hotel and conference centre in Fort Frances, Ont. When she started working for the inn on Oct. 8, 2016, she was subject to a three-month probationary period. The collective agreement between the inn and its union stipulated that termination during the probationary period would be subject only to employment standards legislation and could not be grieved.
The worker was 17 years old when she began her employment and it was her first job. It wasn't long after she started — November 2016 while she was still a probationary employee — when the worker complained to her supervisor that she had been harassed by another housekeeper on several occasions. The harassing behaviour involved, according to the worker, screaming and swearing at her about the quality of her work in front of co-workers and guests at the inn. This co-worker — who was the supervisor's sister — seemed to think she could “aggressively critique” the work of other housekeepers — others had also faced this co-worker's wrath.
The supervisor — who had no training on handling harassment complaints — spoke to her sister about her conduct, but didn't issue any formal discipline. She also didn't update the worker on the complaint, and the worker claimed she continued to be subjected to the harassing behaviour.
Also in November, the worker was temporarily separated from another housekeeper with whom she was working and she encountered a group of male guests staying at the inn. According to the worker, one of the guests gave her a few dollars as a tip and another came up to her, wrapped his leg around her, and kissed her on the cheek. When she rejoined the other housekeeper, she described the incident. The other housekeeper believed the worker seemed proud that she had received a tip, but she warned the worker that she had breached the rule that “we don't allow anyone to touch us.” The other housekeeper asked her why she allowed it to happen, but the worker said she wasn't concerned about it.
The other housekeeper reported the incident to the supervisor, but the worker didn't mention it. The supervisor made a note of the incident in her log, but didn't do anything further. The guests involved were never identified.
Worker escalated complaint after employer's inaction
After another month, in early December the worker and her mother notified the union of the unresolved harassment complaint. A union representative contacted the inn's owner, who then discussed the situation with the worker's supervisor.
The supervisor mentioned she didn't think the worker was doing a very good job and didn't respond well to constructive criticism. The owner — who had been at odds with the union for some time and was upset by the union's raising of the harassment complaint — felt the complaint was the worker's attempt to save her job and suggested they dismiss her. The supervisor agreed and they terminated the worker's employment.
Several months later, the housekeeper to whom the worker had described the incident with the male guests ran into the worker at a store. According to the housekeeper, the worker talked loudly about how the inn owner would have to pay her $10,000 for sexual harassment, to the point where the other housekeeper felt embarrassed.
The union filed two grievances: one for unjust dismissal during the worker's probationary period and — after it learned of the incident from evidence related to the first grievance — another for the inn's failure to investigate the sexual harassment by a hotel guest.
The arbitrator found that it was likely the supervisor had some concerns about the worker's job performance and ability to receive constructive criticism, but it was not the supervisor who made the decision to terminate the worker's employment. The decision was made by the inn's owner, who was angry about the union's communication about the unresolved harassment complaint. As a result, the decision to terminate was motived, at least in part, by the worker's outstanding harassment complaint the arbitrator said.
Violation of OHSA and employer's policy
The arbitrator also found that the behaviour towards the worker by the supervisor's sister was included in the definition of workplace harassment as outlined in the Ontario Occupational Health and Safety Act — “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome” — as well as the inn's own harassment policy and, as a result, the inn had a legal obligation to investigate and keep the worker informed of the results. The act also prohibits reprisals for lodging harassment complaints.
However, the arbitrator found the incident with the male guests played no part in the decision to terminate the worker's employment. The worker didn't formally report the incident and the supervisor only knew about it from the other housekeeper. The owner was not made aware of it and therefore it couldn't have been a factor in the owner's decision to dismiss the worker, said the arbitrator.
The arbitrator also noted there was no evidence the worker suffered any “mental or emotional damage” from the incident — given her initial reaction and her attitude when she encountered the other housekeeper in the store, it didn't seem she thought it was of any concern and didn't want to report it. However, this was partly offset by the worker's young age and the inn's duty as an employer to protect young and vulnerable employees under health and safety and human rights legislation — the situation the worker found herself in wasn't good and could have been worse.
The arbitrator found the inn wrongfully terminated the worker's probationary period and had a duty to protect the worker as a vulnerable employee from situations that could lead to harassment. The inn was ordered to pay the worker compensation for the early termination plus $1,000 in damages for the incident with the male guests.
For more information see:
• Inn and UFCW, Local 175 (Flamond), Re (May 17, 2019), D. Randall – Arb. (Ont. Arb.).