Human Rights Office

Human Rights Office
Human Rights Office

Harriott v. National Money Mart and Wade Desmond, 2010 HRTO 353 (CanLII)

Summary:

The applicant, Marjorie Harriott, worked as a Customer Service Representative at National Money Mart from April 2007 till June 2008. Mr. Wade, the respondent in this case, was the Branch Manager at the National Money Mart location where Marjorie Harriott was employed. Harriott alleged that on a regular and continuous basis she observed Mr. Wade staring at various parts of her body. In addition, Harriott alleged that Mr. Wade made derogatory/sexualized comments about his female employees and some of the female customers. The applicant also stated that Mr. Wade inappropriately made physical contact with her while at work. It was found that Mr. Wade breached both the company’s policy on sexual harassment and multiple sections of the Code. In addition, it was found that Mr. Wade’s comments created a poisoned work environment for Harriott and most of the female employees with whom he worked. Making reference to Laskowska v. Marineland of Canada, 2005 HRTO 30 (CanLII), it was found that the company failed to investigate complaints from a number of employees, including Harriott. In relation to the accusation of employment termination as a result of making a complaint of sexual harassment against Mr. Wade, it was found that Harriott had not proven the requisite intent on the part of the company to reprise against her based on her sexual harassment complaint. 

Question(s) to be Determined:

1. Did Mr. Wade sexually harass or solicit the applicant, thereby violating the Code?

2. Was the applicant exposed to a poisoned work environment while working at the branch managed by Mr. Wade?

3. Was the company’s investigation of the applicant’s complaint of sexual harassment reasonable in the circumstances?

4. Was the applicant’s employment terminated by the company as a result of making a complaint of sexual harassment against Mr. Wade?

5. If there was a breach of the Code, what are the appropriate remedies?

Findings:

1. Did Mr. Wade sexually harass or solicit the applicant, thereby violating the Code?

YES

2. Was the applicant exposed to a poisoned work environment while working at the branch managed by Mr. Wade?

YES

3. Was the company’s investigation of the applicant’s complaint of sexual harassment reasonable in the circumstances?

NO

4. Was the applicant’s employment terminated by the company as a result of making a complaint of sexual harassment against Mr. Wade?

NO

Reasoning:

1. Citing Smith v. Menzies Chrysler, 2009 HRTO 1936 (CanLII) and the company’s own discrimination/harassment policy, it was found that Mr. Wade sexually harassed the applicant. In this case it was found that Mr. Wade knew that his comments and conduct were unwelcome. In this particular case it was argued by the respondent that because the applicant made little or no objection to Mr. Wade’s comments that a finding of sexual harassment should not be rendered. This argument was rejected. “As observed by the Tribunal in Streeter, supra, protest or objection to the allegedly harassing conduct is not a precondition to a finding of harassment: Howard v. deRuiter, 2004 HRTO 8 (CanLII). It was also noted at paragraph 35 of the Streeter decision that because of the power imbalance in the supervisor/employee relationship and the perceived consequences of objecting to a supervisor’s behavior, an employee may go along with unwelcome conduct: see Simpson v. Consumers’ Association of Canada (2001), 57 O.R. (3d) 351 (C.A.), leave to appeal refused [2002] S.C.C.A. No. 83” (para 108).

2. Provided during the case were numerous examples of the “derogatory, insulting and crude comments made by Mr. Wade in relation to his female employees and female customers” (para 112). These “derogatory,” “insulting” and “crude” comments were directly associated to the creation of a poisoned work environment.  In this case the poisoned work environment “became the norm for the applicant as a result of which she was, at a minimum, uncomfortable on virtually a daily basis and, as time went on, she became extremely anxious and stressed with physical symptoms such as panic attacks and vomiting” (para 113).

3. Referencing the Laskowska v. Marineland of Canada, 2005 HRTO 30 (Can LII) in relation to the employer’s obligation to investigate an allegation of sexual harassment, it was found that the company failed to investigate the applicant’s complaints of sexual harassment. In the decision it was stated “that the company’s investigation of the applicant’s complaint did not satisfy the second and third requirements of the Marineland test, in that the company did not take the complaint seriously, did not deal with the complaint promptly, did not take care of its employee, did not demonstrate the appropriate sensitivity to the concerns of the applicant (for example, it was she who had to ask for the transfer and the access to the EAP) and generally did not conduct a reasonable investigation” (para 123).

4. In this case, the applicant alleged that her termination from employment was a result of her prior sexual harassment complaints. The respondent in this case stated that the applicant’s termination from employment was a result of her poor performance and nothing else. In this case it was important to determine the motivations behind the employment termination. Examining this question it was stated “I accept the argument of the respondents that the issue before me is not whether or not there was just cause for the termination of the applicant’s employment; rather, the question is whether or not there was an intent on the part of the company to reprise against the applicant” (para 131). In this matter “the applicant has not proven the requisite intent on the part of the company to reprise against her based on her sexual harassment complaint against Mr. Wade” (para 135). 

Remedies:

In this case Harriott sought $40,000 in damages. In total she was awarded $30,000. This level of compensation was awarded based on the three breaches of Code outlined within the case (sexual harassment, poisoned work environment and failure to investigate). The awarding of damages in this case takes into account the fact that Harriott’s termination from employment was not found to be an act of reprisal. 

a. Within 30 days of the date of this Decision, the company and Mr. Wade are jointly and severally liable to pay $22,500 for violation of the applicant’s inherent right to be free from discrimination and harassment;

b. Within 30 days of the date of this Decision, the company shall pay $7,500 for violation of the applicant’s inherent right to be free from discrimination and harassment;

c. The respondent shall pay the applicant pre-judgment interest from the date of the Application to the date of this Decision in accordance with s. 128 of the Courts of Justice Act;

d. The respondent shall pay the applicant post-judgment interest in accordance with s. 129 of the Courts of Justice Act from the date that is 30 days from the date of this Decision;

e. The company is required to amend and distribute to all employees of the company in Ontario its discrimination/harassment policy within three months of the date of this Decision. Counsel for the respondent company is required to send a copy of the amended policy and confirmation of its distribution to all Ontario employees to counsel for the applicant by no later than three months plus 10 days from the date of this Decision.

f. The company is required to conduct training of its managerial personnel within the province of Ontario within the time frames and as set out in paragraph 155 of this Decision (6 months), and is also required to provide confirmation of such training to the counsel for the applicant as set out in the same paragraph.