Human Rights Advisory Services

Human Rights Advisory Services
Human Rights Advisory Services

Excuse: Complainant did not come forward

Case 1

Bottom Line

When employees fear retaliation for complaining, they may be exempted from the general rule about reporting incidents directly.  

Workplace Harassment

In Savage v 984239 N.W.T. Ltd.,  a woman who worked in a small engine shop was sexually harassed by two co-workers; she was physically assaulted, subjected to gender-based insults and taunting, and threatened.

Failure to Respond

The complainant was too afraid of retaliation from the alleged harassers to file a complaint with the owner.  She did, however, talk to co-workers about the unwelcomeness of the conduct.  One of those coworkers eventually reported the harassment to the owner, who did virtually nothing to discipline or stop the alleged harassers.

Panel's Ruling

The owner's defense for not responding to workplace harassment was that the complainant had not complained directly to him about the situation.  The Human Rights Panel found that the harassment was reported to the owner by a third party, which was sufficient notice. It added however that fear of repercussion is an exception to the rule that a complainant is expected to establish that she had expressly or implicitly made it known that the conduct was unwelcome. The company was ordered to pay her $9,220.33 for lost wages and $1450 for counselling expenses and agreed to hear submissions regarding compensation for disbursement and legal costs (generally these costs are not awarded in human rights cases, but because B.C. has a direct -to-Tribunal system, Tribunals are now considering awarding these costs . NOTE: Ontario has just gone to a direct-to-Tribunal system).  The Panel found the complainant was entitled to a significant award for injury to dignity; women like the complainant have a right to engage in traditionally male-dominated careers in a workplace that they can feel comfortable in. It is the employer's duty to ensure that the workplace is not poisoned with harassment and discrimination. The company was ordered to pay $15,000 for injury to dignity. The two co-workers also had to pay damages (in the amount of $5,000 and $2500  respectively) for malicious and repeated acts of sexual harassment.