Human Rights Office

Human Rights Office
Human Rights Office

Beata Laskowska v. Marineland of Canada Inc. 2005 HRTO 30 (CanLII)

Summary:

Beata Laskowska was an employee at Marineland. She was a cart/token person and this was her first summer job. Ms. Laskowska alleges that she was sexually touched by Stanislav Holer, now deceased, who was the brother of the owner and president of Marineland. She claims that Marineland did not reasonably respond to her internal complaint of sexual harassment. In this case two questions were considered: 1. Does an employer have a duty to investigate a discrimination/harassment complaint under the Code? 2. If so, did Marineland reasonably respond to the alleged incident of August 13, 1999? It was found that the employer does have a duty to investigate a discrimination/harassment complaint under the Code. In this case it was also found that Marineland reasonably responded to the alleged incidents of August 13, 1999. Due to the earlier death of Stanislav Holer, whether or not sexual harassment occurred was unable to be found.

Question(s) to be Determined:

1. Does an employer have a duty to investigate a discrimination/harassment complaint under the Code?2. If so, did Marineland reasonably respond to the alleged incident of August 13, 1999?

Findings:

1. Does an employer have a duty to investigate a discrimination/harassment complaint under the Code?

YES

2. If so, did Marineland reasonably respond to the alleged incident of August 13, 1999?

YES

Reasoning:

1. Citing previous case law it was argued the employer does have a duty to investigate a discrimination/harassment complaint under the Code. Citing Payne v. Otsuka Pharmaceutical Co. (No. 3)(2002), 44 C.H.R.R. it was argued that “subsection 5(1) establishes “a human rights duty not to condone or further a discriminatory act that has already occurred.” At para. 75, the Board found that there was a duty to investigate a complaint of discrimination and that “[i]f they found that discrimination had occurred, they would have had to take reasonable action within their power to remedy the situation (para 50).” Further strengthening this position it was found that “The duty to investigate is a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment” (para 53).

2. Using the criteria of corporate “reasonableness” developed in Wall v. University of Waterloo (1995), 27 C.H.R.R. D/44 it was found the Marineland reasonably responded to the alleged incident of August 13, 1999.  The criteria utilized in this case include:

-Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training

- Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action

- Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication

Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training

Awareness of issues

In preparation for the 1999 summer season, Marineland rewrote its employee handbook, including a new anti-discrimination/harassment policy. The discrimination/harassment policy was disseminated to all management and employees. In 1999 Marineland also hired its first full-time human resources manager.

Anti-Discrimination/Harassment Policy

The policy was recognized for being written in lay persons’ terms and therefore was easy to understand. It was recommended that the policy be changed to reflect the practice that the harassed employee could choose to either confront the harasser or report it to the supervisor or Employment Co-ordinator.

Complaint Mechanism

As part of the new policy, Marlineland included an internal complaint mechanism.

Training 

Training took place at the orientation session for new hires and re-hires. Supervisors were trained and told to emphasize the handbook and its policies in department group sessions.

Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action

Serious and Promptness

Marineland’s management and employees acted quickly and sensitively. An example of this was the decision to contact Niagara Regional Police.

Taking Care of its Employee

Marineland’s first obligation was not the investigation, but to tend to theimmediate care and needs of Beata Laskowska.

Investigation

Marineland began its investigation immediately, within minutes on August 13, 1999. Marineland handled the investigation in a “textbook” manner.

Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication

In this case it was found that Marineland would have been willing to provide Ms. Laskowska with a safe, discrimination/harassment-free work environment had she decided to return to work. Appropriate steps had been taken to ensure that if Ms. Laskowska returned to Marineland, Mr. Holer and she would not meet. Throughout the course of the investigation, Marineland tried to remain in contact with Ms. Laskowska. Communication between Marineland and Ms. Laskowska was stifled due to the applicant’s sister, who was acting as Beata’s  representative. 

Remedies:

No remedies were awarded because it was found that Marineland handled the matter in a responsible manner and did not violate Beata Laskowska’s rights under the Code. As a result of this finding the complaint was dismissed.