Recruiter awarded $50k, lost wages after sexual harassment by HR manager

Yaschuk v. Emerson Electric Canada Limited

The Alberta Human Rights Tribunal (AHRT) recently awarded $50,000 in general damages and 11 weeks of lost wages to someone who endured sexual harassment in the workplace. The harassment occurred at the hands of the company’s human resources manager. Yaschuk v. Emerson Electric Canada Limited marks a rare instance of an award for pain and suffering as high as $50,000 in Alberta.

Facts

• Ms. Yaschuk started working for Emerson Electric Canada as a recruiter in 2011, initially working through an agency, she later created a corporation to work for Emerson as an independent contractor. Yaschuk said the arrangement was made for tax purposes, and she only worked full-time for the electric company (The AHRT found that she was ultimately an employee, not a contractor).
• Mr. Forbes is a human resources manager who has worked for Emerson since 1998.
• Yaschuk claimed she was harassed by Forbes, to whom she reported.
• Yashcuk was fired shortly after she complained to the company’s management about Forbes’ behaviour.
• Her complaint was based on the following events, which she characterized as sexual harassment and discrimination because of her gender:
  • Forbes asked her to view a video called “Movie 43: Ball Neck,” in his office, which contained sexual content and he also emailed a link to the video to Yaschuk.
  • Forbes made sexual comments to Yaschuk in the office.
  • He called Yaschuk a credenza numerous times referring to his power over her employment status.
  • Forbes made flirtatious and suggestive comments on social occasions outside of the office, even to the extent of suggesting he and Yaschuk should have an affair.
  • Forbes routinely asked about Yachuk’s personal dating life.
  • The HR manager also made suggestive comments about other women in the office.
• Forbes’ comments escalated when Yaschuk separated from her common-law partner, and she was fired when Forbes became aware that she had reconciled with her common-law partner.
• A day before the termination of her employment, Yaschuk emailed the Human Resources Vice President (VP of HR) regarding the sexual harassment. The VP of HR conducted an internal investigation, but failed to interview many of the witnesses Yaschuk suggested. The VP did not review or save relevant communication records between Yaschuk and Forbes.
• Yaschuk’s firing caused her significant psychological health impacts, to the extent that she was diagnosed with an adjustment disorder, which prevented her from engaging in meaningful employment.

AHRT Analysis and Decision

$50,000 award for general damages: The AHRT found that Forbes’ conduct fell on the low end of the spectrum of workplace sexual harassment. However the tribunal acknowledged the profound effect it had on Yaschuk’s mental health and consequent employability, awarding her $50,000 in general damages for pain and suffering as a result.

Insufficient investigation: The AHRT’s decision was supported by the fact that the company’s internal investigation into the employee’s complaint was insufficient; it did not properly consider the witnesses or written evidence that Yaschuk provided. However, the AHRT also found that Yaschuk’s firing was not retaliatory on the basis of her complaint.

Award for 11 weeks of lost wages: The AHRT further noted that the VP of HR planned to fire Yaschuk prior to her actual termination due to alleged performance issues; this did not occur because Forbes had prevented it until Yaschuk reunited with her common-law partner. The AHRT determined that Yaschuk would have likely remained employed until Forbes retired, which was scheduled to occur approximately eleven weeks following her termination. She was awarded 11 weeks of lost wages.

Lessons for employees

• Seek legal advice: If you have endured sexual harassment in the workplace, particularly to the extent that it has caused ongoing mental health impacts and affected your ability to work, reach out to an employment lawyer at Samfiru Tumarkin LLP. We can inform you of your human rights, and support you in pursuing a human rights complaint.
• Keep a record of the conduct: Certain workplace conduct, like what Yaschuk experienced, will support a human rights damages award and possible other remedies. Keeping records to the greatest extent possible will help support your claim and assist your organization in investigating your complaint properly.
• Raise your concerns with your employer: It is important to give your employer an opportunity to address any harassment in the workplace. Raise the issue with your superior or your human resources representative. Insist that the conduct be properly investigated, and appropriate measures be taken pending the investigation results.

Lessons for employers

• Properly investigate all employee complaints of harassment: Despite the AHRT’s finding that the sexual harassment Ms. Yaschuk experienced was relatively minimal, the damages award was supported by the AHRT’s determination that the company failed to properly investigate her complaint. Employers should be aware of this duty and take note of the consequences of an insufficient investigation.
• All harassment matters: Low-level sexual harassment is still sexual harassment, is not appropriate in the workplace, and can legitimately cause significant mental health impacts. Employers should be proactive in building workplace harassment policies to prevent and manage any issues that arise, including proper investigation procedure. These policies should be regularly reviewed and revised as needed to support proper policy execution at all levels of the organization. A strong and well-implemented workplace policy creates a culture where events like those in Yaschuk’s case are less likely to happen.
• Reach out for help: The team at Samfiru Tumarkin LLP can advise you on your workplace harassment policies and management strategy to build a work environment where these events are less likely to occur and will be appropriately managed if they do.