After her first few shifts as a customer service representative with Money Mart in Toronto, Marjorie Harriott noticed that her boss, Desmond Wade, liked women a bit too much. Wade would often ogle at female customers and employees, staring at their breasts and rear ends, making comments that they found offensive. Wade would also come too close to the female staff, sometimes touching them, and making them feel uncomfortable to be around him.

Matters came to a head for Harriott when Wade approached her at work and started to massage her neck. Harriott reported the incidents to a manager, who indicated that the company’s human resources representative would look into it. When she never heard back, Harriott telephoned another manager in human resources and complained that she had been harassed. A few weeks later, she was called to a meeting and told that the matter had been investigated and was closed. According to Money Mart, Harriott had to “work it out” with Wade.

Upset about the company’s failure to adequately investigate what she felt was sexual harassment, Harriott recently took Money Mart to a human rights tribunal, which is equal to a court for discrimination-based matters.

In my Workplace Law column in this week’s Metro News, I discuss the case in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues.

In an interesting case coming out of the New Zealand courts, a senior Pilot for Air Nelson, a subsidiary of Air New Zealand is pitted against a former flight attendant.  As reported, the two had sex during a stop-over and following a drinking binge at a hotel room.

The attendant claimed that she woke up in the Pilot’s bedroom and could not remember what happened but believed she had sex with him.  She filed a criminal complaint but police did not lay charges so she then complained to her employer.

Air Nelson decided to fire the Pilot citing serious misconduct, sexual harassment, failing to act responsibility, bullying and drinking alcohol with two crew members.  None of those allegations have been proven thus far.

For his part, the Pilot claims the sex was consensual.  An interesting segment of the cross examination of the attendant states that she ordered two breakfasts the following morning (implying that had she been harassed, why didn’t she just leave):

“I don’t remember that.”

“Just like that your memory stops?”

“Yes,” she said.

“Was this a case of you consenting to intercourse but regretting it afterwards and using the loss of memory as an excuse?”

“No, it wasn’t,” she said.

The hearing is likely to continue for the rest of the week.  In his claim, the Pilot seeks reinstatement.

In Canadian employment law, only unionized employees have a legal right to reinstatement.  This is typically negotiated into collective agreements, which are prevalent in the airline industry.  However, only about 30% of the Canadian workforce is unionized.  For the rest of the workforce, reinstatement is not an option.  Although it can be ordered in human rights cases, it is usually viewed as an exceptional remedy, reserved for few cases, if at all.  Therefore, in situations where an employee has been fired, with no notice or insufficient notice, or in cases where serious misconduct is alleged, the recourse would be through the courts in a wrongful dismissal claim.

A recent article from the Globe and Mail explores the difficulties of returning to work after settlement, scandal or termination. For Lisa Rundle, who is set to return to her role as rights and contracts director at Penguin, returning to the workplace after “a gossip inducing absence” may not be easy.

Returning after termination, workplace scandal or, in Ms. Rundle’s case, winning a settlement against your employer, can lead to sticky situations – from reintegrating with employment structure to dealing with office politics.

Experts say it’s best to avoid gossiping even if you are not bound by confidentiality agreements.

Bobbi Olsen, lawyer with Ricketts Harris LLP and counsel for Ms. Rundle, says that while she can’t comment on the specifics of the case, generally employees returning after a lawsuit are entitled to a safe work environment free from aggravation resulting from the complaint.

However, “with human nature being what it is … there will inevitably have been debate regarding the credibility of the complainant [among co-workers],” she adds.

Even if you win your case and get your job back, Ms. Olsen says, “there are limitations to what litigation can actually do for a person; it can’t ‘unring the bell,’ so to speak.”

Read more from this article here.

By: Ellen Low

After a month of speculation, it appears that the salacious details of the supposed affair between Lisa Rundle, the former director of Rights and Contracts at Penguin Canada, and the former president of Penguin Canada, David Davidar, are destined to remain a mystery.

In June, Rundle launched a $500,000.00 lawsuit against Davidar and her former employer claiming she was the victim of 3 years of sexual harassment and was constructively dismissed when she complained about Davidar’s behaviour.

Rundle claimed that Davidar initiated his advances by leering and making suggestive comments, but stated things culminated during a business trip to Frankfurt where he allegedly sexually assaulted her by forcing his way into her hotel room, grabbing her wrists, and forcing his tongue into her mouth.

Not surprisingly, Davidar denied sexually assaulting or harassing anyone and maintained he was “happily married”.  He admitted the two had a “consensual, flirtatious relationship,” and that they kissed twice, but denied that Rundel objected at any time.

On Tuesday, July 7, 2010, the matter was reportedly settled out of court.  The parties have apparently resolved all their issues and promised to stay silent about the terms of settlement.  However, earlier today Penguin confirmed that Rundel will be returning to her old job.

The situation above describes the dilemma between acceptable harmless, at-work flirtation and fraternization, and unjustifiable intimidation in the form of sexual harassment.  It is important to remember that to be harassment, the conduct has to be unwelcome.  This means the victim has to either inform the aggressor that the conduct is unwelcome, or the harasser ought to know the conduct is unwelcome.

Sexual harassment in the workplace is a serious issue.  In previous discussions we’ve established that sexual harassment in the workplace gives rise to human rights issues as well as a claim for constructive dismissal.

By: Cédric P. Lamarche

An article by Michele Henry published in the Toronto Star on June 21, 2010, discusses the case of a young black woman who was sexually harassed and was the object of racial taunts at work.

The object of the reprehensible conduct, Stacey Walker, worked at Toronto Western Hospital’s imaging department as an imaging technologist.  The author of the article reports that the inappropriate conduct towards Ms. Walker included the following:

• Displaying racially charged cartoons in the workplace;
• Making statements such as “Don’t beat me up massa” and  “Get up, give me your seat and go make me some stew”;
• Inappropriate and suggestive touching, such as massaging her shoulders;
• Stating “I wish you weren’t wearing a shirt or bra, that way I could give you a better massage”;
• Calling her Shaniqua, Chaka Khan, La Toya and Dark Walker; and
• Throwing her credentials badge on the floor and whipping a bottle cap at her legs while she bent over to pick it up.

This conduct, according to the article, started only 9 days after Walker’s first day on the job.  Ms. Walker complained to management, but her complaints fell on deaf ears and were ignored for 16 months.  During this time, the conduct continued and rumors quickly spread through the Hospital.  Many of Ms. Walker’s colleagues formulated their own conclusions and impressions regarding her complaints.  Only once Ms. Walker’s complaints reached the ears of a senior manager, a formal internal investigation was launched and, according to the article, confirmed the inappropriate conduct.

Employees who believe that they are being subjected to discriminatory conduct at work should not dismiss the inappropriate behaviour.  It is paramount that the employees review any discrimination and/or harassment policies implemented in their workplace and follow their protocol.  Note that as of June 15, 2010, employers in Ontario have an obligation to formulate policies addressing workplace harassment and violence, due to the recent amendments to the Occupational Health and Safety Act.

Employees are also encouraged to consult with employment law experts to review their case.  Even if an internal investigation is conducted, the employer may be liable to the employee if they do not abide by strict guidelines dictated by law.  Situations of discrimination or harassment can give rise to cases of constructive dismissals, in addition to human rights violations.  In Ms. Walker’s case, despite the Hospital’s investigation into the matter and despite any affirmative actions taken by the Hospital to remedy the poisoned work environment, the Hospital’s unreasonable delay in addressing Ms. Walker’s complaints may sufficiently demonstrate that the employee – employer relationship has been tainted to the point where continued employment would be intolerable.

Reading last week’s headlines about the case of Debrahlee Lorenzana, the New York banker claiming she was fired because her good looks distracted her male colleagues, raised an alarm as to the public’s various misconceptions of critical issues in workplace law. Here are just a few of them.

In one article, the author claimed that Lorenzana’s wrongful dismissal case against her employer sparked a debate over “workplace sexual harassment.” Turning this case into an issue of sexual harassment could indeed be an interesting development in workplace law – except that it is wrong.

Is it discriminatory to rely on looks when firing an employee? In another article, the author suggested that if Lorenzana was treated differently because of her appearance, it could constitute discrimination under human rights laws. This would also be a major development in human rights law, except that it is also wrong.

In my  Metro news article from this week, I discuss this in further detail.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP, which provides practical legal advice and advocacy for workplace issues. You can reach Daniel at dan@toronto-employmentlawyer.com. For even more on workplace law, follow him on Twitter at www.twitter.com/danlublin.

By: Brian Norris

The recent and very public locker room gun-pulling incident between NBA players Gilbert Arenas and Javaris Crittenton has highlighted the importance for employers to create and enforce policy on workplace safety.

As many sports fans know, Arenas and Crittenton have now been suspended by the league for the remainder of the 2009-2010 season for brandishing guns in the Washington Wizard’s locker room. Some may interpret the NBA’s actions as “making an example” of the payers. Others, such as myself, see it as the league legitimizing and enforcing it’s policy outlined in the collective bargaining agreement; An agreement produced by the collective efforts of the NBA owners and the Players’ Union.

As previously mentioned by Daniel Lublin, if an employer wants to lean to it’s policies in support of a lawsuit, it is important for them to circulate and enforce clearly worded company policy.

With the introduction of Bill 168 in Canada, the issue of workplace safety regarding violence has been a hot topic as of late. The incident between Arenas and Crittenton and the manner in which the NBA dealt with it is a good example for all employers to take notice of.

Brian Norris is the Office Manger of Whitten & Lublin LLP, an employment law office providing counsel to both employers and employees.

The Human Rights Tribunal of Ontario recently reported the decision in Maciel v. Fashion Coiffures, siding with the applicant who was terminated immediately following the announcement of her pregnancy. 

The press release by the Human Rights Legal Support Centre indicates that Vice Chair Naomi Overend noted Ms. Maciel's vulnerability in her decision by outlining that "She was young, just out of school, and coping with an unplanned pregnancy. This was to be her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing."

Follow this link to the Globe & Mail article on Ms. Maciel's ordeal.

A copy of the decision can be found by clicking on the link below.

Download Maciel v Fashion Coiffures doc

Whitten & Lublin is an employment law firm providing counsel to both employers and employees on a wide range of employment law issues.

The law now leans towards workers as harassed employees are no longer without a legal remedy.   

Workplace abuse may have been obvious but rarely did it amount to a paid vacation.

Employees faced with a workplace abuser used to visit their doctor for a prescription or a note requesting a leave of absence.  Except in extraordinary cases, employees were without a legal remedy, as courts had little, if any, appetite to walk into the workplace and order bosses to be nicer to their subordinates.  The reality for most: either leave – or lose – your job. 

But the abuser no longer gets to act with legal impunity.  Now, equipped with the knowledge that he or she can sue for significant damages, tormented employees call their employment lawyer.

Just as I discussed in my May 2, 2007 Metro News Column (read here) employees have options when it comes to an abusive boss:

– Where abuse leaves an employee’s job objectively intolerable, she should resign and sue for constructive dismissal, but only after first discussing the merits of your case with me.

– Request that a workplace investigation be commenced to substantiate allegations of an abusive boss.

– If there is a discriminatory motive, consider commencing a complaint at the Ontario Human Rights Commission.

Employees no longer have to hide in a legal box, without recourse.  When it comes to an abusive boss, legal options do exist.