Meeting 22: Race and Indigeneity in Recent Case Law

Summary:

In this case, the applicant, Mr. Sandhu alleges discrimination and reprisal against the Peel Police Services Board. Mr. Sandhu self-identifies as a South Asian Punjabi Sikh. The applicant speaks English, Punjabi, Urdu and Hindi. Mr. Sandhu was hired by Peel Police Services in 1989. His ability to speak so many different languages and understanding of the South Asian community was perceived as an asset to the police force. During his time with the police force, Mr. Sandhu worked in the South Asian unit of the Intelligence Bureau and was promoted to the rank of Detective. As a Detective Sergeant he worked in Diversity Relations from 2009-2012. During his time in the South Asian unit of the Intelligence Bureau and his time in Diversity Relations, Mr. Sandhu was highly regarded for his police work. In addition to these assignments, Mr. Sandhu worked at the Airport Division for eight months. In February 2013, the applicant applied for a promotion to the rank of Inspector, but his supervisors did not recommend him. In this case the adjudicator concluded that the applicant was not recommended for this position because his experience in Diversity Relations and in the South Asian Intelligence unit was discounted. In addition, it was found that Mr. Sandhu’s cultural knowledge and languages were the reason he was placed into these positions to begin with. It was stated that not only was he placed into these positions because of race, he also stated and was asked to stay longer in these positions because of his racial identity. In this case it was stated that work in the South Asian Intelligence unit and Diversity Relations unit was not considered “real police work” and therefore because of this judgment, Mr. Sandhu was discriminated against when applying for a promotion. In addition, it was stated that when assessing Mr. Sandhu for this promotion, his supervisors only evaluated his work with the Airport Division. This was deemed to be the only appropriate/relevant experience, despite Mr. Sandhu’s years of experience working in other units of the Peel Police force. It is important to note that in these other positions, Mr. Sandhu occupied supervisory roles. Ultimately it was concluded that Mr. Sandhu’s race and place of origin were factors in his failure to be recommended for promotion and that he was discriminated again contrary to s. 5 of the Code.

Questions to be Determined:

1. Was the applicant, Mr. Sandhu, the subject of discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code?
    
2. Was the applicant subject to reprisal in employment on the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code?

Findings:

1. Was the applicant, Mr. Sandhu, the subject of discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code?
   YES

2. Was the applicant subject to reprisal in employment on the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code?
   NO

Reasoning:

1. In determining the Mr. Sandhu had been subject to discrimination in employment on   the basis of race, colour, ancestry, place of origin, ethnic origin contrary to the Code, the adjudicator considered all other reasons why Mr. Sandhu may have not received the promotion. The rationale was explored point by point in the ruling. In particular, the adjudicator ruled out performance and lack of supervisory experience as reasons why Mr. Sandhu was not promoted.
   First, performance was not an issue (para 113).
   Second, it was not because of lack of time in the Staff Sergeant / Detective Sergeant role. He had been at that rank for four years, not counting the six-month period of  indefinite acting at that rank immediately prior to his promotion (para 114).
   Third, it was not because of his lack of experience as an Acting Inspector; though  Mendyk noted that “some had more”, the applicant’s over 800 hours of acting time was, as acknowledged by Superintendent MacMullen, more than enough to be considered  for promotion. The fact that his acting time was all in Diversity, however, is relevant,  and in fact was specifically raised in the Command Team Assessment as a factor against  recommending the applicant for promotion (para 115).
   Fourth, his unique contributions to the Service were acknowledged by all concerned. There is little question that he was, and is, an excellent officer. His skills as an officer, combined with his cultural and linguistic skills, have without doubt assisted the Service   in enhancing its reputation within the community ( para 116).
   Fifth, the only specific reason given in his command team assessment was his lack of experience supervising front-line officers. As I have found above, the applicant did in fact have such experience from his time as a Staff Sergeant at the Airport Division.  Furthermore, given the evidence, in particular the experience of the other candidates   for the 2013 promotional process, and the experience at the rank of Staff/Detective Sergeant of those senior officers who testified before me, I do not find that the applicant’s experience supervising front-line officers was as important a factor in recommending an individual for promotion to inspector as has been suggested by the respondent (para 117).
   Given the above, my finding is that the applicant’s time in Diversity and South Asian Intelligence was a reason, and in fact the primary reason, he was not recommended for promotion to inspector (para 118).
   Given these findings, the adjudicator then turned their attention to the reasons why Mr. Sandhu was not awarded the promotion. As an overall comment it was decided that the  applicant was not awarded the position because of a devaluing of the units and therefor   work done in the units to which Mr. Sandhu was assigned.
   I have found above that the South Asian portfolios were generally devalued in the Service, and have accepted that at least one reason for this was the fact that they were associated with the South Asian population. Even though I find that MacMullen and Mendyk did not share such negative views, and despite the fact that they accepted that the applicant’s “instrumental” work had “continually reflected very well on the Peel Regional Police”, I have found that their decision was nonetheless based on the fact that they ultimately did not give much value to this work as a qualification for promotion  (para 136).
   In addition to my finding that work in the South Asian units was devalued in the service, I also accept the evidence that the applicant was assigned to these positions, in part, due to his race, particularly his ethnic origin and place of origin, because of his specific cultural knowledge and language skills. I further find that the length of time he spent in those portfolios was also due in part to these same factors (para 137).
    
2. In this case the applicant also alleged reprisal after filing a grievance related to his not  being recommended for promotion. It was ultimately decided he was not subject to reprisal because there was no evidence provided with respect to who, within the Service had seen a copy of the grievance.
   There was, in fact, no evidence with respect to who, within the Service, ever saw an  actual copy of the grievance. As noted in the May 24, 2013 cover letter from the Peel Regional Police Association accompanying the grievance, it was filed directly with the Police Services Board, rather than the Chief as would be the normal practice, as the Chief was part of the promotional board (para 150).

Even if I were to accept that specific actions were intentionally taken against the  applicant because he had filed a grievance, if the individuals responsible were not aware the applicant had raised Code issues, there is no basis to make a finding of reprisal under the Code. There is no evidence before me on which I could find that Mendyk, MacMullen, Thorne or Asanin knew that the applicant had raised Code issues in the grievance (para 151).

Remedy:

In this case the remedy has yet to be decided. In September 2017 an interim decision was released regarding the amendment of personal remedies sought by the applicant. A case management conference call has been scheduled to discuss further evidence with       respect to remedy.

Summary:

In this case, the applicant, Farouk Fredricks worked for BTS Network Inc. from July 2013 till August 29, 2014 when his job was terminated. The applicant worked as a bus driver for BTS Network Inc. in Port Hope, ON.  The respondent, BTS Network Inc. alleges that Mr. Fredricks’ employment was terminated because he violated a non-competition Appendix in his employment contract. During the time of his employment, the applicant does not deny working for Coach Canada, a “rival” bus company on his weekends. The applicant alleges that his employer was aware of his employment with Coach Canada on the weekend. Contrary to the respondent’s position, the applicant alleges he was fired as a form of reprisal for a letter he had written to the company alleging racial discrimination in the workplace. It is important to note that the applicant was encouraged to document his concerns regarding racial discrimination by his supervisor, Rose Burt. In this case there were a number of issues that were decided. In considering whether the applicant’s complaint of racism played a part in the decision to fire Mr. Fredricks, the adjudicator considered the depth of investigation that BTS Network preformed when considering his complaint. In this case, the adjudicator concluded that Ms. Burt did not perform any real type of investigation (i.e. not speaking to the applicant at any point) and therefore disregarded his complaints. Ms. Burt, working on behalf of BTS Network ultimately decided that Mr. Fredricks’ complaints of racial discrimination was unfounded. In this case the adjudicator decided that contrary to the respondent’s position, that Mr. Fredricks was terminated for violating the non-competition appendix in his employment contract. It was asserted that Mr. Fredricks was ultimately terminated as a form of reprisal for writing a formal complaint against BTS alleging racial discrimination in the workplace. In this case, the adjudicator paid particular attention to the requirement of an employer to properly investigate a claim of discrimination in the workplace. There is no evidence that the employer did an investigation into the applicant’s concerns regarding racism in the workplace.

Questions to be Determined:

1. Was the applicant’s employment terminated as a form of reprisal, contrary to Section 8 of the Code?

Findings:

1. Was the applicant’s employment terminated as a form of reprisal, contrary to Section 8 of the Code?
   YES

Reasoning:

In this case it was determined that the applicant’s employment with BTS Network Inc. was terminated as a form of reprisal for the concerns he raised in relation to racism in the workplace. This is contrary to the respondent’s position that the applicant’s           termination was a result of his violation of the non-competition appendix in his employment contract.

This leads to the conclusion that the respondents were looking to fire the applicant in late August, 2014 and used the applicant’s part-time employment with Coach Canada as an excuse…. If the applicant’s work for Coach Canada was not the reason for the termination of his employment, what was the reason? I agree with the applicant that the only plausible explanation is the fact that he had made a formal complaint of racism against another of his co-workers. That is, he claimed his rights to a workplace free from discrimination and harassment on the basis of race (para 61 and 62).

It was further stated that,

The respondents’ attitude to the fact that the applicant made an allegation of discrimination is made manifest by the way they reacted to his complaint. Having asked him to put his concerns in writing, they appear to be deeply offended by what they read. Other than to get the alleged perpetrator’s point of view, they did nothing to investigate what might be the applicant’s concerns. There is no evidence that they made any effort to speak to him and the other worker before concluding that his concerns had no merit (para 64).

It would appear that the respondents took the view that differential treatment, in the absence of any overt expressions of racism, cannot amount to racism and that it was, therefore, improper for the applicant to have even raised the spectre of racism.Ultimately, the respondents may have been correct that the applicant’s concerns were either groundless, or based on some other, non-Code related hostility, but given the short shrift they gave them, their outrage seems misplaced (para 65).

Remedy:

In this case the adjudicator remained seized to deal with the issue of remedy but no future cases exist with a description of the remedy.

Summary:

This case is a labour arbitration between the City of Burlington and CUPE Local 2723, who is representing the grievor, Susan Catherwood.

The Corporation of the City of Burlington has a ‘zero tolerance’ policy in place for sexual harassment in the workplace.

The allegations that were brought forward in 2015 and 2016 which gave rise to a workplace investigation, pursuant to the City of Burlington’s Respect in the Workplace Policy, and precipitated Susan Catherwood being terminated from her job are as follows:

1. Ms. Catherwood was dancing, in a sexually suggestive manner, in front of Mr. Alfaro;
2. Ms. Catherwood ran her index finger along the shaved head of Mr. Alfaro from front to back, licking her finger and replying “yummy” afterward; and
3. Ms. Catherwood using the word “erection” and making a hand gesture indicating an erect penis.

At the time of termination, Ms. Catherwood had a clear disciplinary record, had received training with respect to harassment in the workplace and was familiar with the policies concerning harassment, having herself lodged complaints of sexual harassment against two of her

Questions to be Determined and Findings:

1. Did the three incidents occur as reported?
   1. Dancing incident (NO)
   2. Touching Mr. Alfaro’s head (YES)
   3. Making an obscene gesture (NO)
2. Was the City reasonable in terminating Ms. Catherwood’s employment? (NO)

Analysis:

The Collective Agreement had no “just cause” article for discipline or discharge of an employee. However, all employees, unionized and otherwise, signed an employment contract which clearly outlined “just cause” for discipline or discharge.

The employer has in place a robust policy concerning sexual harassment in the workplace and drew upon the points within the policy that specify “sexually suggestive comments or gestures, unwelcome remarks, and physical contact of a sexual nature”.

With respect to the dancing incident, the Arbitrator found that Mr. Alfaro and Mr. Lichey’s versions of events concerning the dancing changed over time and what was first discussed as something Ms. Catherwood typically participated in on Fridays was reframed as sexual in nature.  However, in both versions, it was noted that the dancing was already occurring prior to Mr. Alfaro entering the room. Therefore, the Arbitrator found:

On the balance of probabilities that Ms. Catherwood’s dancing was somewhat inappropriate for the workplace, but did not constitute sexual harassment.

Second, the touching of Mr. Alfaro’s head was not disputed that it occurred. However, Ms. Catherwood denies that she licked her finger and replied yummy.  The arbitrator concluded:

Ms. Catherwood said the entire incident was intended as a joke.  I accept that evidence. In my view, even if she said “yummy”, Ms. Catherwood said it with no sexual connotations, as there was nothing else of a sexual nature about any of the surrounding circumstances.

I find the head-touching incident was an inappropriate joke intended to tease Mr. Alfaro, but has not in the circumstances been established as sexual harassment.

With respect to the obscene gesture, the Arbitrator found that there was no evidence in the report from the investigation that Ms. Catherwood admitted to making an obscene gesture in the workplace and therefore it was dismissed.

The Arbitrator in this case suggested, when an individual outright denies allegations of sexual harassment, it is pertinent that an employer ensure that a workplace investigation occur and that on a balance of probability that the complainant is truthful and the allegations are substantiated.  In this case, the Arbitrator did not find that to be so. Stating further that,

It is important that in investigating and acting on a complaint of sexual harassment that is denied by the alleged perpetrator, an employer must take care to assess whether the complainant if bringing the complaint forward for improper reasons.

In this case, the Arbitrator concluded that Mr. Alfaro was bringing forward allegations against Ms. Catherwood as reprisal for her bringing forward complaints against two of his colleagues and friends.

Therefore the Arbitrator concluded that although some of Ms. Catherwood’s actions were inappropriate for the workplace the termination of her employment was without just cause. The Arbitrator also rejected the employer’s assertion that the employment relationship cannot be reestablished.

Remedy:

Ms. Catherwood be reinstated.

Ms. Catherwood have a two-day suspension on her record.

Ms. Catherwood is to be compensated for lost wages.

Summary:

The following case is a grievance filed by the Memorial University of Newfoundland Faculty Association (MUNFA) on behalf of Dr. Sutradhar.  The MUNFA is grieving a 20-day suspension of pay that was imposed upon Dr. Sutradhar following a complaint from a graduate student of unwanted sexual touching and investigated by the respondent, Memorial University of Newfoundland (MUN).

The complainant of sexual harassment against Dr. Sutradhar was an international graduate student under the supervision of Dr. Sutradhar.  Her claim is that on several occasions he touched her in inappropriate ways.  The Head of the Department of Mathematics and Statistics, confirms that he instructed Dr. Sutradhar to alter the configuration of his office so that the desk was place in a way that it separated him and his students.  This never occurred and the placemen to furniture necessitated students sitting directly beside Dr. Sutradhar.  The complainant states that during their regular meetings he would touch her arm and leg and on one occasion he moved his hand up her skirt.

Following the complainant’s allegations the university conducted an investigation.  Using MUN’s policy on harassment and discrimination, they followed the prescribed procedures and concluded that on a balance of probabilities that sexual harassment took place.  In considering the nature and severity of the sexual harassment, the university imposed a 20-day suspension of pay.

The university submitted they followed the prescribed process under the harassment and discrimination policy and given the outcome of the investigation saw fit to impose a 20-day suspension of pay.  Stating that, the decision was determined with “having regard to the repeated physical contact over a lengthy period of time, the increasing seriousness of the contact, and the power imbalance in the relationship”.

The Association on behalf of the Grievor submitted that the complainant was not a credible witness and that the Arbitrator should decide credibility in favour of the Grievor.  The Association noted that the complainant gave multiple contradictory statements throughout the complaint process and insinuated the complaint was precipitated by the fact that the complainant was performing poorly within her graduate program.

Questions to be Determined and Findings:

1. What is the effect, if any, of the conduct of the investigation by the Investigator; (NONE)
2. Did the Employer have just cause to impose discipline on the Grievor on the grounds of sexual harassment; and (YES)
3. Did the employer have just cause to impose the penalty of a 20 day suspension without pay? (YES)

Analysis:

The Board reserves the right to review the procedures undertaken by the Investigator and determined whether they aligned with Procedural Fairness as outlined in the MUNFA Collective Agreement.

The Grievor stated that the Investigator should not have required face-to-face contact for the interview and that his written responses should not adversely impact him.  This Board stated that it is not for them to tell an Investigator how to go about the investigation but rather to determine whether the procedure was followed.

The Board finds that the Investigator’s investigation as well as the conduct of the University President are aligned with the Procedures as outlined in the MUNFA Collective Agreement.

In determining on a balance of probabilities whether the Employer proved the allegations, the Board considered Faryna v. Chorny with respect to credibility:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must be to reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

The Board considered the relationship with the Grievor and complainant in this situation, as well as the Grievor’s failure to heed the advice of the Department Head with respect to his office furniture arrangement and in weighing the credibility the Board accepts the complainant’s version of events.

With respect to the 20 days suspension without pay, the Board considered that the complaints spanned over a period of time, the complainant was vulnerable due to her status as an international student and a graduate student and therefore the Board ruled that the 20 day suspension was to be upheld.

Summary:

This case is an application filed with the Manitoba Labour Board against the University of Manitoba Faculty Association (UMFA) for an unfair labour practice contrary to Section 20 of the Labour Relations Act (the “Act”).  The applicant alleges that the failure of UMFA to seek judicial review of the arbitration award issued by Arbitrator Michael Werier in December 2008 where the dismissal of the Applicant from the University of Manitoba was upheld breached UMFA’s duty under the collective agreement to take reasonable care in representing his interests.

The Applicant’s employment was terminated by the University on November 2007 as a result of a complaint filed by a student.  The centrality of the complaint and reason for dismissal of the Applicant was based upon allegations that he had sexually harassed the student over a period of time including engaging in numerous sexual acts with her to which she did not consent.  The Applicant denied the allegations and filed a grievance.  The grievance was not revolved and the matter was referred to Arbitration.  In the 85-page document produced by the Arbitrator, it stated “there was just cause for discipline and a clear case for discharge”, additionally the University provided evidence of two previous cases of inappropriate conduct by the Applicant of a sexual nature involving students.

The Arbitrator noted that the central issue that needed to be considered was one of credibility.  Weighing whether the events and D.J’s version was more credible or whether the Grievor’s version of events was more credible on a balance of probabilities.  Using Justice O’Hallaran’s time-tested remarks in Farnya V. Chorney the Arbitrator ruled:

After a review and consideration of the evidence, I have determined for the reasons that follow that I accept D.J’s version pf events and reject the Grievor’s version of events. I believe her and I do not believe him.

Questions to be Determined and Findings:

1. Did UMFA fail in taking reasonable care in representing the interests of the Applicant in not seeking judicial review of the arbitration award issued by Arbitrator Michael Werier? (NO)

Reasoning:

The leading case to be considered by the Manitoba Labour Board is Bednarski and relied upon in Maintenance Trades (2006). In both of these cases the Board considered the question of whether a union’s refusal to seek judicial review of an arbitration decision may, in appropriate circumstances, constitute a breach of the duty of fair representation.  However, it is important to note that just because an award does not go in favour of the Grievor does not mean that a union has failed in their duty of fair representation.  Further, the decision to seek judicial review lies solely with the union and only in very rare or compelling circumstances would the Board second guess the judgment of the union.

Therefore, although section 20 of the Act may encompass “an obligation to seek judicial review of an arbitration award, the Board will only interfere with the Union’s decisions in extreme or exceptional circumstances” further stating,

For the Board to conclude that a union should file a judicial review application, the defects in the arbitration award must be so patent and pervasive that the Board can readily conclude that the union would be acting arbitrarily not to do so.  That is certainly not the case here. The union fulfilled its obligations under s.74 of the Act when it reached the honest and legally rational opinion that it would not judicially review the arbitrator’s award.

The Union fulfilled its responsibility in contracting out an Arbitration of the complaint, which lasted 10 days and produced an 85-page award in which the complainant and not the Applicant was to be believed.

Outcome:

The original Arbitration was properly conducted, the Union’s decision not to file for judicial review and the university’s decision to terminate employment on the grounds of sexual harassment are upheld.

Summary:

On July 17, 2017 the Employee filed a complaint alleging that the Owner sexually harassed her in her employment in violation of section 13 of the Human Rights Code [Code].

In May 2017, the Employee began working for the Company cleaning RVs.  At the time she was 24 years old, with a grade 11 education.  She is a single mother and this was the first job she was able to attain since the birth of her child.  Her position was an on-call position.

The Employee alleges that on June 3, 2017 the Owner in engaged in unwanted sexual advances, including unwanted touching.

The Employee reported the incident to Mr. S, another man for whom she performed on-call work for on the same property.  She informed Mr. S that she was going to go to the police.  At this time, Mr. S said that the Owner wanted to offer her an RV to live in and he would pay her rent for 3 months.  He did not want her to report the incident to the police.

On July 17, 2017 the Employee filed her complaint with the commission.  On July 21, 2017 she accepted an on-call job from Mr. S, who informed her his friend wanted to “get to know her the way that the owner did”. On July 28 the Owner received notice of the human rights complaint.

Between August 9 – 17 the Employee was in contact with Mr. S regarding the human rights complaint and he was attempting to resolve the issue on behalf of the Owner.

Mr. S and the Employee agreed upon a settlement of $800 with a promise that she would be able to keep her job.

The Employee met with the Owner to receive her financial settlement and he presented her with a waiver to sign. Following that interaction, the Employee claims she was never contacted again for employment with either Mr. S or the Owner.

Questions to be Determined?

1. Can the case move forward with a settlement already in place?

Findings:

1. Can the case move forward with a settlement already in place? (YES)

Reasoning:

The Tribunal found that people are not able to contract out of their rights under the Human Rights Code, citing Insurance Corporation of British Columbia v. Heerspink, [1982] @ SCR 145 at 158. For that reason, regardless of whether or not the parties have entered into a settlement agreement with respect to a human rights dispute, it does not deprive the Tribunal of jurisdiction to hear the dispute.

The Tribunal has frequently dismissed complaints in the face of a settlement agreement on the basis that proceeding with the complaint would not further the purposes of the Code, however, in this case, the Tribunal found that it could proceed for the following reasons:

1. The language of the release;
2. Unconscionability – “which exists where there is an inequality of bargaining power and a substantially unfair settlement”;
3. Undue influence;
4. Whether the party received independent legal advice;
5. Conditions of duress – which may be related to the timing of the agreement, financial need, or other circumstances;
6. And whether the party received little or no consideration for the release.

In considering the above reasons, the Tribunal found that the case should go forward and be heard before the Tribunal, stating, the substantial unfairness of the bargain combines with the power differential between the parties, the Employer’s conditions of economic and emotional distress at the relevant time, the lack of power legal advice, and the nature of the allegations to persuade me that the purposes of the Code are not served by holding these parties to this bargain.

Outcome:

Case may proceed.

Summary:

On March 31, 2006, the applicant (Dianne Ford) received an email from a user named Dianne’s Stalker. At the time the applicant was seven months pregnant and a faculty member at Nipissing University.

The applicant’s partner forwarded the email to several members of the senior administration, following which a meeting with campus security took place.

The applicant indicated that she had an idea who the sender of the offensive email might be but declined to tell the university.

After several corresponding emails, it was agreed upon with the parties that a Security Guard would not attend class on Monday morning following the incident. Other options were discussed in terms of another faculty member sitting in on the class or walking Dr. Ford to class, both of which were declined by Dr. Ford.

Technology Services attempted to trace the offensive email and was able to determine that it was sent from a computer in the University Library, however, the computer was in a public area and no login credentials were required to use the computer.

It was noted that Ms. Ford refused to name the individual she thought was responsible was the harassing email.  On April 13, 2006 the applicant was responsible for invigilating an exam by herself.  Dr. Ford stated that she was extremely anxious and this caused her preterm labour, a claim that was not substantiated with any medical proof.

Dr. Ford never returned to the institution following her parental leave.  In her exit interview, she stated that the reasons for leaving were primarily because of the opportunity that the other position offered, however, she noted that if she did not have the new position she would likely be actively seeking other employment as a result of the incident.

Questions to be Determined and Findings:

1. Did the applicant experience discrimination and harassment in her employment on the bases of sex contrary to ss. 5(1), 5(2) and 7(2) of the Code? (YES)

All parties agree that the offending email constituted harassment.  The question now becomes, whether the ‘directing mind’ of the respondent met its substantive and procedural obligations under the Code.

2. Did the management of the respondent University respond and investigate the harassment adequately?

In applying the test outlined in Laskowska v. Marineland Inc., 2005 HRTO 30 (CanLII), the following questions must be asked:

1. Did the employer meet its obligation to provide a healthy work environment? (YES)

It was found that the university did meet its obligations in providing a healthy work environment.

2. Did management communicate its actions to the applicant? (NO)

Although Initial communication following the incident was effective, the communication throughout the process broke down, due to two reasons. The university primarily communicated with the applicant’s husband and the university failed to follow-up to Dr. Ford’s exit interview request regarding the complaint.

3. Was the respondent prompt in dealing with a harassment complaint? (YES)
4. Was the issue dealt with seriously? (NO)

Although both Security Services and the university administration were prompt in their initial response, their tenacity and efforts were not maintained beyond the initial response.

5. Was there an awareness by the employer that sexual harassment is prohibited conduct? (YES)

However, it was noted that awareness and training of how to effectively reply with empathy was lacking.

6. Did the employer demonstrate that there is a complaint mechanism in place? (YES, but NO)

There is a harassment and discrimination policy in place, however, in order for the procedures to be triggered, an offender must be named.Due to the fact that without an individual accused of the harassment, the procedure was not available to Dr. Ford and therefore a policy review was precluded.

Reasoning:

The respondent University met its duty to provide a safe work environment, however, they failed to remain diligent in their pursuit of the matter and gaps in policy and procedure due to an unidentified accused and the breakdown in communication mean that the university was ineffective in responding to Dr. Ford’s complaint.

Therefore, in responding to the harassment, the respondent University met its substantive obligations under the Code.  However, because after its initial response, the University failed to remain diligent in pursuing the matter and because of the failure to sustain communications with the applicant, I find that the University did not meet its procedural obligations under the Code.

Remedy:

The following is a summary total of the monetary remedies outlined in these reasons for decision:

1. $15,000.00 for injury to dignity, feelings and self-respect; and
2. $1,950 for ongoing counseling and psychotherapy.