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Queen's University
 

Wamsley v. Ed Green Blueprinting Ltd.

Wamsley v. Ed Green Blueprinting Ltd [2010] O.H.R.T.D. No. 1482

A Xerox repairman swatted the buttocks of a female employee of Ed Green Blueprinting. At the time of the incident, the company had no sexual harassment policy but was in the process of developing a workplace harassment and violence policy.

Visibly upset, the grievor complained to her supervisor. The latter, who never received any training in sexual harassment from the employer,  investigated immediately. First of all, he talked to the repairman, who admitted that he had indeed swatted the woman's buttocks. Then, to resolve the complaint, he brought the two parties together so that the repairman could apologize to his sister.

The employee was dissatisfied with the way her supervisor had handled the case. Not only did she object to the stressful face-to-face meeting with her harasser, which caused her emotional distress, but also, she was frustrated when her supervisor refused to report the repairman to Xerox or to request that another repairman be sent to Ed Green. Instead, he seemed to belittle the incident, by impressing upon her that the repairman had simply made a "stupid mistake" for which she should not "ruin his life" by reporting him.  Moreover, the supervisor did not report this incident to his boss, the owner of Ed Green Blueprinting.

Later on, the employee complained about the sexual misconduct to the owner.  The latter took the issue very seriously and encouraged her to go "to the authorities" who would be better equipped to handle such an egregious case. He did not, however,  report the respondent to Xerox nor did he take measures to have the copy machines at Ed Green Blueprinting serviced by a new repairman.

In fact, the repairman who had swatted her buttocks continued to service the machines at Ed Green's on a regular basis.  The employee was very uncomfortable and upset about having to work regularly in close proximity to the man who had swatted her buttocks.

Issue

Did the employer satisfy its legal duty to protect the employee from sexual harassment in the workplace?

Decision

No

Reasons

The tribunal offered a three-part test for employers in this kind of situation and then applied it to this case. He cautionned that every case is to be determined on its own merits, and that the tests can be applied with a certain degree of flexibility.

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

  • Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident?
  • Was there a suitable anti-discrimination/harassment policy?
  • Was there a proper complaint mechanism in place?
  • Was adequate training given to management and employees?

2. Post-Complaint: Seriousness, Promptness, Taking Care of its Employee

  • Once an internal complaint was made, did the employer treat it seriously?
  • Did it deal with the matter promptly and sensitively?
  • Did it reasonably investigate and act?

3. Resolution of the Complaint (including providing the Complainant with a Health Work Environment)

  •  Did the employer provide a reasonable resolution in the circumstances?
  • If the complainant chose to return to work, could the employer provide him/her with a healthy, discrimination-free work environment?
  • Did it communicate its findings and actions to the complainants?

 He found that Ed Green Blueprinting had failed to pass any of the three tests. The employer had no policy or complaints mechanism in place at the time of the incident, the supervisor had received no training in sexual harassment, the supervisor failed to report the incident to management; he failed to respond appropriately (by failing to report the technician, by failing to remove him from the workplace) and sensitively (the rhetoric used to persuade the employee not to report the technician). The employer did not provide the employee with a healthy, discrimination-free environment; it failed to take into consideration the employee's discomfort with having to work in the presence of her harasser

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000