'We're seeing a consistent trend… that human rights breaches need to have higher damages awards'
The cost of breaching human rights legislation is going up for Alberta employers.
“Employers can't make decisions about whether to settle cases on the basis of the expected award, even if they're found to have breached human rights and that breach is negligible,” says Roxanne Davis, an employment and human rights lawyer with Carbert Waite in Calgary.
“I don't think that is something they can effectively rely on anymore.”
The trend to which Davis refers was reinforced in a recent Alberta Human Rights Tribunal decision ordering an employer to pay a worker more than $50,000 in damages after the worker was sexually harassed and fired.
The worker was an occupational health and safety specialist hired in 2014 by Jaco Line Contractors, a general construction business in Red Deer, Alta. A few months after her hire, Jaco gave her a raise.
In June 2015, the worker was to perform quality audits in British Columbia. Jaco’s owner decided to accompany her to Vancouver in a company-owned truck on June 9.
Upon arrival, the owner contacted a downtown hotel but there was only one suite available. The suite contained two floors with a master bedroom and an office space. The office space had a sofa bed but no walls.
The worker said that she wasn’t comfortable sharing a suite, but when it became apparent that there were no rooms available elsewhere, she agreed to sleep in the office space.
The worker and the owner drank some wine and the worker took a nap on the sofa bed. A short time later, room service arrived and the owner went upstairs to wake the worker.
According to the owner, he touched the worker’s shoulder, but the worker said that he grabbed her breast and hip.
The worker said that the owner was intoxicated. She yelled at him and told him to go to bed, so he went upstairs. The owner disagreed, saying that they ate dinner together before the worker went to bed.
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Owner denied accusation
The worker tried to discuss it the next day, but the owner denied he had touched her inappropriately. The worker said she wanted to go home early, but the owner refused.
The audit didn’t go well due to the worker’s mental state and technological issues. They stopped the audit and headed back to Red Deer, but they drove through some U.S. states because the owner wanted to introduce her to an executive in the U.S. They returned home on June 17.
The worker took time off and came back to work on July 6. The same day, the owner’s brother – who was not a Jaco employee – told her that she was terminated. According to the owner, it was due to poor performance.
The worker filed a sexual assault complaint with the Vancouver police and attended one counselling session before her benefits ended. After that, she attended a recovery program.
After the worker’s termination, Jaco discovered a wrongful payment of more than $9,000 that she had authorized for herself as a vacation payout. A Jaco lawyer sent the worker a letter alleging that she had been terminated for cause, referring to the wrongful payment, poor performance, and false accusations against the owner.
The worker paid the money back, but an umpire in an employment standards dispute ruled that the worker was terminated for cause.
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Human rights complaint
However, the worker filed a human rights complaint alleging that Jaco discriminated against her.
The tribunal noted that the worker had the burden of proof to show a prima facie case of discrimination, meeting the three-part test – she had a protected characteristic, she suffered an adverse impact, and the protected characteristic was a factor in the adverse impact.
The tribunal found that, as a woman, the worker’s gender was a protected characteristic. Her employment was terminated shortly after the business trip, which was an adverse impact.
The tribunal also found that the owner lacked credibility. In addition to denying that any sexual touching took place, the owner said that he wasn’t interested in pursuing the worker. However, he admitted to visiting her home and bringing her flowers when she was off sick. He also acknowledged that he had dated two other female employees and had taken them on work trips where he shared a suite with them.
The tribunal found that the owner came across as straightforward and seemed to have a good memory, but he acknowledged that he had used demeaning terms towards the worker and showed a lack of respect for women in the workplace.
More than four in 10 Canadians say they have experienced at least one behaviour or practice of sexual harassment and violence at work in the previous two years, according to a report.
Work environment questionable
It was interesting that the tribunal found the owner to be consistent, but some of his candid admissions about the work environment increased the likelihood that the harassment happened, says Davis.
“Even though [consistency and reliability] are typically positive indicators of credibility, some of the comments that [the owner] freely made spoke to what the working environment was like,” she says. “The tribunal member [was put] in a position where she could draw conclusions about what was more likely the case based on things he candidly admitted.”
On the other hand, the tribunal found that how the worker withstood the owner’s accusations that she was lying helped the worker’s credibility.
“The tribunal member noticed that, when confronted with something that the [owner] was alleging was a lie, [the worker] wasn't flustered, she wasn't trying to change her story to explain the discrepancies,” says Davis. “And that's an indicator that somebody is telling the truth and they don't feel like they've been caught in a lie and try to explain it away.”
“It’s common in allegations of sexual harassment and sexual assault that it turns on an assessment of credibility,” adds Davis.
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Missing harassment policy
The owner said that he believed Jaco had a workplace harassment policy, but he was unable to provide it – which didn’t help his cause, according to Davis.
“Particularly in these circumstances where the complaint is against a senior leader or the owner of an organization, there has to be some other avenue to make a complaint and have it investigated and addressed without going through the person that they're making the complaint about,” she says. “And if the employer’s policies don't have a workaround for that, they should be updating them.”
The tribunal found that the owner subjected the worker to unwelcome conduct of a sexual nature that affected the work environment, which constituted sexual harassment in general and physically on the work trip.
As for the worker’s termination, the tribunal found that the owner had no opportunity to observe the worker’s performance before the audit and the fact that he had given her a raise a few months earlier and wanted to introduce her to a U.S. executive belied his claim that he wasn’t happy with her performance.
The tribunal also found that the owner was aware by the end of the business trip that the worker believed he had touched her inappropriately.
Harassment complaint a factor in termination
Given the proximity of the termination to the worker’s allegation, the tribunal found that, even if the owner later found cause for dismissal, the worker’s termination was at least in part due to her gender and the sexual harassment – satisfying the third part of the discrimination test.
Jaco was ordered to pay the worker compensation for 30 days’ lost wages and $50,000 in damages for injury to dignity. In addition, the company was required to implement a written anti-harassment policy and train its employees on it.
The injury-to-dignity award was on the high end, which is trending in Alberta human rights decisions, according to Davis.
“As much as [the award] speaks to the individual circumstances and what the harassment consisted of in this case, it actually is more indicative of the Alberta Human Rights Commission and Tribunal actively trying to better reflect awards that are being given in other jurisdictions,” she says.
“Historically, Alberta damage awards for human rights breaches have been low compared to other provinces – particularly B.C. and Ontario – and there's been, I think, quite fair criticism of the commission for that.”
“Over the last couple of years – not just in reported decisions but also in conciliations where settlements are being reached – we're seeing a consistent trend in the commission recognizing that human rights breaches need to have higher damages awards to properly reflect the impact that [discrimination] has on individuals, and also to make have a deterring effect,” Davis adds.
See McCharles v. Jaco Line Contractors Ltd., 2022 AHRC 115.