Worker awarded damages due to sexual harassment at work: Employment lawyer on HR Reporter

Interview Summary

Shortly after starting a position as an assistant, an employee at a communal office space and warehouse was sexually harassed by the company CEO. After repeated instances of inappropriate conduct, the employee decided to resign from her position and later filed a human rights complaint. The complaint alleged harassment, discrimination, a toxic work environment, and reprisal.

Mackenzie Irwin, a Toronto employment lawyer and Senior Associate at Samfiru Tumarkin LLP joined the HR Reporter’s Jeffrey Smith to discuss the resolution of this suit and employee rights regarding workplace harassment.

Interview Notes

• Spectrum of harassment: Irwin noted that the specific incidents the employee experienced mattered in determining the severity of sexual harassment. “Sexual touching would be a more egregious violation, but the [worker] wasn’t touched, even though the rest of the harassment happened,” said Irwin. “The worker mentioned that when she rejected the CEO, he accepted her rejection and didn’t force himself on her – it was interesting to see the tribunal say that this was a factor towards a lower award.”
• Human Rights Tribunal difficulties: Despite an initial error in the worker’s filing, they continued with the harassment complaints against the CEO personally. “The problem is that the tribunal is so backlogged and slow that it took four years to get to a hearing, so why would you want to take a step back and potentially restart the process with the proper corporate respondent name?” said Irwin. “But eliminating her claim against the [company] took away her claim for lost wages – which could have been over four years of wages owed to her by the company.”
• Damages awarded by the tribunal: Irwin explained many factors can determine how the tribunal awards damages. “The tribunal determined that this [worker] didn’t feel as trapped in the job as in other scenarios, to justify damages in a lower range,” she said. “But the reality is that there’s a large variety of damage awards from the tribunal, and it truly is luck of the draw in terms of what vice-chair you get and how the evidence comes across – there’s no consistency on how these kinds of damages are awarded.”
• Policies in the workplace: Regardless of company size, Irwin noted that companies should have a policy in place to properly deal with harassment complaints. “It’s important for employers to have proper sexual harassment and workplace harassment policies and protocols in place and ensure the workforce is properly trained on them,” said Irwin. “It’s one thing to have a policy in place, but it’s quite another to make sure that if these issues come up in your workforce, you’re dealing with these complaints by your policies and procedures. Otherwise, they’re not worth the paper they’re written on.”

Related Resources

For further insights and discussions related to workplace harassment, explore the following resource:

• Workplace investigations