Sharp v. Seasons Restaurant
1987-03-31
Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE
Debbie Sharp
Complainant
v.
Seasons Restaurant
and
Bob Aleksovski
Respondents
Place: Mississauga, Ontario
Before: Ian C. Springate
Comm. Decision No.: 277
Appearances by:
Anita Lyon, Counsel for the Ontario Human Rights Commission and Debbie Sharp
Bob Aleksovski, on his own behalf
SEXUAL HARASSMENT — sexual advances by employer
Summary: The Board of Inquiry finds that Bob Aleksovski sexually harassed Debbie Sharp while she was employed by him as a waitress at the Seasons Restaurant. The Board accepts Ms. Sharp's evidence that Mr. Aleksovski grabbed her repeatedly, touched her breasts and made crude sexual remarks to her. Ms. Sharp's evidence is corroborated by that of two other waitresses who witnessed Mr. Aleksovski's behaviour.
The Board orders Bob Aleksovski to pay $1500 to Debbie Sharp in compensation for lost wages, $2,000 in general damages, and $805 in interest.
1These proceedings arise out of a complaint filed by Ms. Debra (Debbie) Sharp alleging that the Seasons Restaurant and Mr. Bob Aleksovski violated sections 4(1), 6(2), 6(3) and 8 of the Human Rights Code. On January 23, 1987 I was appointed a board of inquiry to hear and decide the matter.
2Section 8 of the Code provides as follows:
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this part.
Section 6(2) of the Code states that:
6.(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
Section 9(f) defined the term "harassment" as follows:
9.(f) "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.
Having regard to my findings set out below, there is no need to deal with the alleged breaches of section 4(1) and 6(3).
3At the time of the hearing into the complaint, Ms. Sharp was 30 years old. She was about 28 when the events complained of occurred. She was married with a young son.
4Because her husband worked days, Ms. Sharp sought an evening job so as to be able to look after her son during the day. In September of 1984 Ms. Sharp obtained employment as a waitress at the Seasons Restaurant located in the Streetsville district of Mississauga. Initially, Ms. Sharp worked evenings from Tuesday to Saturday. At some point in November or December 1984, however, she began to also work lunch periods on Thursdays and Fridays. On these two days, Ms. Sharp's son was looked after by the mother of Mr. Bob Aleksovski, at Mr. Aleksovski's home, along with Mr. Aleksovski's two children.
5The Seasons Restaurant is a 175 seat establishment. It has a dining room area where breakfast, lunch and supper are served. The restaurant also has what is referred to as a "drinking area," which appears to be quite busy in the evening. The evidence establishes that at all relevant times Mr. Bob Aleksovski had prime responsibility for managing the restaurant. According to Ms. Sharp, she was advised by Bob Aleksovski that he is the owner of the restaurant. Bob Aleksovski's brother Lou assists with the management of the restaurant. One former employee testified that she believed Lou Aleksovski to be a part-owner of the restaurant. No complaint is made with respect to the conduct of Mr. Lou Aleksovski.
6No evidence was led as to the legal entity that actually employed Ms. Sharp. It seems unlikely that "Seasons Restaurant" is itself a legal entity. It may be that the restaurant is owned and operated by a limited company. There is nothing before me, however, which indicates that such is the case or what the name of such a limited company might be. In these circumstances, I am satisfied that the complaint should proceed only against Mr. Aleksovski in his personal capacity. Although the reporter transcribing the evidence at the hearing at times referred to Mr. Aleksovski in the transcript as "Robert Aleksovski," and counsel for the Ontario Human Rights Commission (the "Commission") did likewise, all of the witnesses, including his wife, referred to Mr. Aleksovski as "Bob." It is possible that Mr. Aleksovski's first name is neither Robert nor Bob. What is clear, however, is that Mr. Aleksovski uses the name "Bob" and is commonly known by that name. At the hearing Mr. Aleksovski raised no objection to the fact that he is referred to in the complaint as Bob Aleksovski.
7At the commencement of the hearing, Mr. Aleksovski requested that the matter be adjourned so as to enable him to arrange for the attendance of witnesses. Mr. Aleksovski indicated that he had been of the view that the employee of the Commission who had investigated Ms. Sharp's complaint would "invite all the witnesses," that is all of the people interviewed by her during the course of her investigation. Later in the hearing, Mr. Aleksovski indicated that he had not been aware of the nature of these proceedings, believing that only an interview was involved. He also indicated that Friday, the day on which the hearing was held, was not a convenient day for him to be away from the restaurant. Counsel for the Commission opposed the requested adjournment. I denied Mr. Aleksovski's request for an adjournment. The record indicates that on January 23, 1987, Seasons Restaurant and Mr. Aleksovski were each sent a separate formal notice of hearing which read, in part, as follows:
The Minister of Labour, The Honourable William M. Wrye, has appointed a Board of Inquiry to hear and decide the above-noted complaint in accordance with subsection 37(1) of the Human Rights Code, 1981, c. 53 as amended.
Attached, hereto, is copy of the appointment of the above-noted Board of Inquiry. Please note that the hearing is scheduled to commence at 10:00 a.m., on Friday, the 20th day of February, 1987, at the Ramada Hotel Airport West, 5444 Dixie Road, Mississauga, Ontario, in the Aspen Room.
Please be advised that if you do not attend, the hearing may proceed in your absence.
Accompanying the notice of hearing was a copy of the document appointing me a board of inquiry. I am satisfied that the documents forwarded to Mr. Aleksovski would have reasonably put him on notice that these proceedings involved a formal hearing. It was incumbent on Mr. Aleksovski to take reasonable steps to prepare himself for the hearing. Counsel for the Commission had arranged for the attendance of a number of witnesses. In these circumstances I concluded that it would not be appropriate to grant the requested adjournment.
8In addition to Ms. Sharp, counsel for the Commission called two other witnesses, namely Mrs. Laura Whalen and Miss Jillian Caldwell. These latter two individuals worked as waitresses at the Seasons Restaurant during the same period as did Ms. Sharp. Both left the restaurant's employ in early January, 1985. Mrs. Whalen and Miss Caldwell testified as to certain conduct on the part of Mr. Aleksovski towards Ms. Sharp which they had observed. As indicated below, I have relied on that evidence. Mrs. Whalen and Miss Caldwell also testified that Mr. Aleksovski engaged in similar conduct towards themselves. Counsel for the Commission characterized this evidence as similar fact evidence. I make no finding as to whether this is an appropriate case in which to apply similar fact evidence. Suffice it to say, in reaching my findings of fact as to whether or not Mr. Aleksovski engaged in the complained of conduct towards Ms. Sharp, I have not relied on any of the evidence relating to his conduct towards Miss Caldwell or Mrs. Whalen.
9Miss Caldwell and Mrs. Whalen are not, and at the relevant time were not, socially friendly with Ms. Sharp. Indeed, their working relationship was somewhat strained. Ms. Sharp and Miss Caldwell in particular did not get along well. In the words of Miss Caldwell, "our personalities just did not click." Ms. Sharp denied a contention on the part of Mr. Aleksovski that she had threatened to quit if he did not discharge Mrs. Whalen and Miss Caldwell. Ms. Sharp acknowledged, however, that she had temporarily quit her job as a result of a personality conflict with Miss Caldwell. These facts add weight to the evidence given by Miss Caldwell and Mrs. Whalen. There is no apparent reason as to why they would fabricate evidence to support Ms. Sharp's complaint.
10Mr. Aleksovski called as a witness his wife, Mrs. Eleni Aleksovski. Mrs. Aleksovski testified that at the relevant time she worked as a waitress in the restaurant, generally from 7:00 a.m. to 2:00 p.m. She also worked occasionally in the evening when the restaurant was short a waitress. Mrs. Aleksovski acknowledged that due to her hours of work she was not in a position to know for certain whether the allegations against her husband were true. She indicated, however, that she did not believe the allegations against him.
11Ms. Sharp testified that during the first month and a half that she worked at Seasons Restaurant she had no complaints relating to Mr. Aleksovski's conduct. She stated that after that time, he began to engage in improper conduct on a regular basis, particularly after he had been drinking. According to Ms. Sharp, when the two of them were out of view of customers, Mr. Aleksovski would come up behind her and put his arms around her, sometimes grabbing her breasts, while at the same time pressing his body against her back. Ms. Sharp further testified that on a couple of occasions Mr. Aleksovski grabbed her in a headlock while saying something in Macedonian, a language she does not understand. Mr. Whalen testified that she had seen Mr. Aleksovski behind Ms. Sharp with his body pressed against her and his arms around her. Mrs. Whalen further testified that on several occasions she had seen Mr. Aleksovski grab Ms. Sharp in a headlock.
12Mr. Aleksovski denied that he had engaged in the conduct complained of. He testified that at times Ms. Sharp would put her hand on him and say "Dingo, look how much money I brought you." It was Mr. Aleksovski's evidence that at times Ms. Sharp voluntarily sat on customers' laps, and when on one of those occasions a customer grabbed her breast, he told the customer not to bother the girls.
13Ms. Sharp testified that at times when she placed a bar order with Mr. Aleksovski, he would grab himself in the groin area and say "I will give you my cock instead." She stated that at one point her pay was three weeks in arrears, and when she raised the matter with Mr. Aleksovski, he grabbed himself in the groin area and said "I'll give you this for payment." Ms. Sharp's evidence was supported by that of both Miss Caldwell and Mrs. Whalen. Mrs. Whalen testified that when Ms. Sharp ordered drinks, Mr. Aleksovski would grab his genital area and say he'd give her his cock instead. Miss Caldwell testified that "many times" when Mr. Aleksovski was at the bar she heard him tell Ms. Sharp that she could have his cock and saw him grab himself in the groin area. Mr. Aleksovski denied these allegations. It was his evidence that on one occasion Ms. Sharp asked him for a "coke," and because she had laryngitis it sounded like she was asking for a "cock," and he had joked about it. He denied making any other reference to a "cock." Mr. Aleksovski further claimed that he did not work at the bar, but rather served food. The evidence of Ms. Sharp, Miss Caldwell and Mrs. Whalen, however, indicates that while Mr. Aleksovski did not serve liquor to customers, he did at times work at the bar filling orders for waitresses. It is clear that Lou Aleksovski generally tended the bar in the evening, but the weight of the evidence suggests that when he was not present, Bob Aleksovski performed this function.
14Ms. Sharp testified that she told Mr. Aleksovski to stop the conduct of which she complains, using phrases such as "knock it off," "get lost," and "stop it," but that his reply was to laugh at her. Mrs. Whalen testified that she had observed Ms. Sharp pushing Mr. Aleksovski away from her and telling him to stop bothering her.
15Ms. Sharp testified that she felt degraded and ashamed by Mr. Aleksovski's conduct towards her, and that it affected her ability to eat and sleep. She further testified that it impacted on her family life; but was afraid to tell her husband about what was happening. According to Ms. Sharp, she continued working at the restaurant because her husband had gone into a new line of business and they needed the income from her job. Ms. Sharp quit her job at the restaurant on or about December 7, 1984. She testified that she did so because "I just couldn't put up with the abuse any more." Ms. Sharp stated that she quit her job in the middle of a shift because Mr. Aleksovski was being obscene.
16In support of his contention that he did not act inappropriately towards Ms. Sharp, Mr. Aleksovski relied on the fact that Ms. Sharp would at times give him a lift in her car — something he contends she would not have done if her allegations against him were true. At the relevant time, Ms. Sharp and Mr. Aleksovski lived near each other. Mrs. Aleksovski generally drove the family car to the restaurant early in the day to work breakfasts. About 11 a.m. on Thursdays and Fridays, Ms. Sharp would drive her son to the Aleksovski residence where Mr. Aleksovski's mother looked after him along with Mr. and Mrs. Aleksovski's two children. Ms. Sharp then drove Mr. Aleksovski to the restaurant. Given the circumstances and the time of day involved, in my view nothing turns on Ms. Sharp's action in driving Mr. Aleksovski to the restaurant. It was also Mr. Aleksovski's evidence, however, that Ms. Sharp would drive him home from the restaurant, which would have been about 2:00 a.m. Ms. Sharp denied that she had done so. It was Mrs. Aleksovski's evidence that at times Ms. Sharp did drive her husband home, although not on a regular basis. Although the matter is not free from doubt, I am prepared to accept Mrs. Aleksovski's evidence on point, and accordingly concluded that on occasion Ms. Sharp did drive Mr. Aleksovski home after work.
17In further support of his contention that he had not acted inappropriately, Mr. Aleksovski contended that Ms. Sharp had twice quit the restaurant's employ, but both times returned. He submitted that she would not likely have returned had he been engaging in the conduct complained of. Mr. Aleksovski testified that in the week ending November 4, 1984, Ms. Sharp did not report for work for a few days because she had obtained employment at another establishment, although she later returned to Seasons Restaurant. According to Mr. Aleksovski, Ms. Sharp advised him that she had been ill on the days in question, but he had been told by another waitress that she had in fact been working elsewhere. Ms. Sharp, who was the first witness to testify, was not specifically asked about this alleged quit. When cross-examining Ms. Sharp, however, Mr. Aleksovski did ask her if she had ever quit, to which Ms. Sharp referred only to the time she quit following a run-in with Miss Caldwell. Given the evidence as a whole, and considering the hearsay nature of Mr. Aleksovski's evidence on point, I am not satisfied that Ms. Sharp quit her employment during the week ending November 4, 1984.
18As already noted, Ms. Sharp did quit as a result of a conflict with Miss Caldwell. She was off work for two days. It was Ms. Sharp's evidence that Mr. Aleksovski asked her to return to work. Mr. Aleksovski denied that he had done so. He stated he had taken Ms. Sharp back at the request of his wife. For her part, Mrs. Aleksovski testified that Ms. Sharp came to her home in tears asking for her job back. I prefer Mrs. Aleksovski's testimony on point over that of Ms. Sharp. I do so because on the evidence as a whole, it seems unlikely that Mr. Aleksovski would have made a point of seeking out Ms. Sharp to ask her to return to the restaurant. The restaurant had a high turnover of staff in late 1984 and early 1985. Indeed, the evidence indicates that of the seven waitresses who started with the restaurant when it opened in September, 1984, only one was still employed in February 1985, namely Mrs. Aleksovski. The turnover in waitresses appears not to have troubled Mr. Aleksovski. Indeed, during the hearing he made the statement that when waitresses quit, you replace them. When Ms. Sharp subsequently quit the restaurant's employ, it is clear that Mr. Aleksovski did not try to convince her to return. Given these considerations, I believe the most logical sequence of events was that Ms. Sharp quit her employment as a result of a conflict with Miss Caldwell, and then two days later concluded she should not have done so and thus asked Mrs. Aleksovski for her job back.
19The timing of Ms. Sharp's initial quit is in dispute. Ms. Sharp testified that it was "Octoberish," prior to when Mr. Aleksovski started to harass her. Mrs. Aleksovski, however, recalled it as being a few weeks prior to when Ms. Sharp finally quit her employ. In giving his evidence on this point, Mr. Aleksovski referred to certain pay records. Copies of the records were placed in evidence. They indicate that apart from the week she finally quit, there were two weeks in which Ms. Sharp worked considerably fewer hours than normal, namely the weeks ending November 4th and December 2, 1984. Indications are that it was during the week ending November 4th that Ms. Sharp advised Mr. Aleksovski that she was ill, meaning that her quit, and return, were likely in the week ending December 2, 1984. This was during the time period that Ms. Sharp contends she was being harassed by Mr. Aleksovski.
20I turn now to the primary issue before me, namely whether Mr. Aleksovski engaged in the conduct and made the comments complained of. For the reasons noted above, I believe Ms. Sharp tried to mislead me with respect to the timing of her earlier resignation from Seasons Restaurant and the circumstances under which she returned. She also denied the fact that she had occasionally driven Mr. Aleksovski home. These factors do not weigh in her favor when assessing her credibility on the main issues. However, to some extent the same holds true for Mr. Aleksovski. As indicated above, I am satisfied that he was not telling the truth when he testified that he did not work at the bar. The fact that Ms. Sharp returned to the restaurant after her initial quit may, as Mr. Aleksovski contends, indicate that she was not being treated inappropriately. Ms. Sharp's evidence as to why she felt she had to continue working, however, must also be kept in mind in this regard. The fact that on occasion Ms. Sharp drove Mr. Aleksovski home in the early hours of the morning does tend to indicate that she felt she had nothing to fear from him. A more weighty consideration, however, is the evidence of Miss Caldwell and Mrs. Whalen. By the time of the hearing, they had long since ceased to be employees of Seasons Restaurant. Neither are friends of Ms. Sharp, and indeed at the relevant time Ms. Sharp temporarily quit her job due to a conflict with Miss Caldwell. Miss Caldwell and Mrs. Whalen do not appear to have had anything to gain by giving the evidence they did. Their evidence supports Ms. Sharp's version of events on all material points. In these circumstances, I am satisfied that Mr. Aleksovski did, in fact, engage in the conduct complained of, namely frequently grabbing Ms. Sharp and directing crude remarks at her.
21The purpose of section 6(2) of the Code, which is set out above, was recently discussed by Ms. A. F. Bayefsky, acting as a board of inquiry, in Cuff v. Gypsy Restaurant, (1987), 1987 CanLII 8550 (ON HRT), 8 C.H.R.R. D/3972 at para. 31517 as follows:
The policy of prohibiting sexual harassment in the workplace is to recognize that the dignity of an employee requires treatment and opportunity which is independent of sexuality. It is a policy of respect for the many human qualities which are relevant to employment or advancement; it is a denial that willingness to tolerate coercive sexual encounters or a sexually demeaning work environment is one of those qualities.
22Given the definition of "harassment" in section 9(f) of the Code, sexual harassment can only be said to have occurred where there has been a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome. The evidence indicates that Mr. Aleksovski engaged in the complained of acts and made the complained of comments on a number of occasions. The term "vexatious" implies a degree of annoyance or bother. I am satisfied that Ms. Sharp was annoyed by Mr. Aleksovski's conduct and comments and that her annoyance in the circumstances was reasonable. I am further satisfied that Ms. Sharp made it known to Mr. Aleksovski that his comments and conduct were unwelcome. Given these circumstances, I am satisfied that Mr. Aleksovski did sexually harass Ms. Sharp in violation of her rights under section 6(2) of the Code. His conduct was also in breach of section 8 of the Code.
23Section 40(1)(b) of the Code empowers a board of inquiry to direct the party infringing a right under the Code to make restitution for loss arising out of the infringement. I am satisfied that Ms. Sharp quit her position at the restaurant as a result of Mr. Aleksovski's unlawful conduct. Ms. Sharp found alternate employemnt relatively soon after she quit the restaurant's employ. She is entitled to be compensated for the intervening period. Ms. Sharp testified that she generally worked at Seasons Restaurant five days a week from 5:00 p.m. to 2:00 a.m. as well as twice a week from 11:30 to 2:00 or 2:30, earning $3.50 an hour. Mr. Aleksovski did not challenge this evidence when cross-examining Ms. Sharp. However, when he himself testified he stated that Ms. Sharp actually commenced work at 9:00 p.m. and not 5:00 as she claimed. As already noted, Mr. Aleksovski identified certain pay records when testifying with respect to when it was that Ms. Sharp had temporarily left the restaurant's employ. The records in question consistently record far fewer hours than the approximately 50 hours per week Ms. Sharp indicated that she generally worked.
24The records also indicate that Ms. Sharp was not paid for all the hours she claimed to have worked. It is clear on the evidence that Ms. Sharp worked the supper period. This being the case, a 5:00 o'clock starting time seems more reasonable than 9:00 o'clock. From Mr. Aleksovski's evidence, it appears that Ms. Sharp would start working in the dining room area and then, when the supper period was finished, she would move to the drinking area. At one point in his evidence Mr. Aleksovski discussed the timing of this move stating that "After nine o'clock or ten o'clock when there was no suppertime, she (Ms. Sharp) would have come down to work on her own section or overload from the girls." This evidence taken as a whole indicates that Ms. Sharp did, in fact, generally start work prior to 9:00 p.m. In these circumstances, I accept her evidence that she generally started at 5:00 p.m. It follows that she was not paid for all of the hours that she worked. I have no jurisdiction, nor was I asked, to rectify past failures on the part of the restaurant to pay Ms. Sharp for all the hours that she worked. However, with respect to the matter in which I do have jurisdiction, namely quantifying damages for the period she did not work, I believe it appropriate to calculate the damages on the basis that had she worked, she would have been entitled to be paid for all of her time.
25At the hearing, counsel for the Commission calculated Ms. Sharp's losses on the basis of Ms. Sharp's evidence concerning the number of hours she generally worked as well as her uncontradicted evidence that she earned approximately $400.00 per week in tips. Counsel indicated that the Commission was claiming a total of $1,500 for both wages and tips lost by Ms. Sharp. On the evidence, I find this to be a reasonable estimate of Ms. Sharp's losses and accordingly accept it as the appropriate figure.
26Counsel for the Commission also requests "a small amount" of damages attributable to Ms. Sharp's loss of day care services. I have no doubt but that the loss of employer-provided day care services may be the proper subject matter of a compensation order. Ms. Sharp's son, however, was looked after in a private home by Mr. Aleksovski's mother who, the facts suggest, was likely not paid for her services. In my view this is not the type of employer-provided care services that can appropriately be compensated for by way of an order under the Code.
27Counsel for the Commission also requests general damages for the mental anguish suffered by Ms. Sharp. Such an award is expressly permitted by section 40(1)(b) of the Code. I have no doubt that Ms. Sharp suffered mental anguish as a result of Mr. Aleksovski's conduct. Not only was she on the receiving end of his crude remarks, but she was frequently grabbed by him, without regard to her feelings, for the purpose of giving himself some sort of sexual pleasure. Mr. Aleksovski's unlawful and highly selfish conduct had adverse repercussions on Ms. Sharp's personal life. While recognizing the difficulty of putting a monetary value on the type of anguish suffered by Ms. Sharp, I believe an award of $2,000.00 to be appropriate.
28The amount owing to Ms. Sharp totals $3,500.00. The Commission asks that interest be calculated on this amount from the date the complaint was served on the respondents. I am in agreement with this proposal. The complaint was apparently sent to Mr. Aleksovski in February, 1985. The Bank of Canada rate that month was 11.5 percent. Interest on the $3,500.00 for the time period subsequent to the date of filing totals $805.00
29The Commission requests an order requiring the restaurant to advise the Commission whenever a female employee leaves its employ over the next two years, providing it with her name, last known address, length of employment and reason for leaving. Section 40(1)(a) of the Code empowers me to make orders designed to ensure on-going compliance with the Code. The evidence of Mrs. Whalen and Miss Caldwell, which I have relied on for the purpose of assessing an appropriate response under section 40(1)(a), and for this purpose only, indicates that Mr. Aleksovski's inappropriate conduct was not limited to Ms. Sharp. He touched both Mrs. Whalen and Miss Caldwell in a sexual way against their wishes. In these circumstances, I believe the order requested by the Commission to be appropriate. I note that Mr. Aleksovski can comply with the requirement by simply filing with the Commission a copy of the Record of Employment that the restaurant is already required by law to provide every terminated employee. I am also perpared to grant the Commission's request that a card provided by the Commission be posted at the workplace setting out the preamble and first eight sections of the Code. Having regard to the above, I now make the order set out below.
Order
30This Board of Inquiry, following a hearing into the complaint of Debbie Sharp, has found the respondent Bob Aleksovski to be in breach of section 6(2) and section 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, as amended.
31IT IS ORDERED THAT:
(1) Bob Aleksovski pay to the complainant, Ms. Debbie Sharp, the sum of $1,500.00 as damages for lost wages; and
(2) The respondent Bob Aleksovski pay to the complainant Debbie Sharp the sum of $2,000.00 for mental anguish caused as a result of his unlawful conduct; and
(3) The respondent Bob Aleksovski pay to the complainant the sum of $805.00 as interest up to May 1, 1987; and
(4) The respondent Bob Aleksovski post at Seasons Restaurant, 25 Queen Street North, Streetsville, Mississauga, Ontario a card provided by the Human Rights Commission setting out the preamble and first eight sections of the Code; and
(5) The respondent, Mr. Aleksovski, each time a female employee leaves the employment of the said Seasons Restaurant within a two year period from the date hereof, deliver to the Ontario Human Rights Commission the following information in writing:
a) The name and address of the employee
b) The period of her employment
c) The reasons for termination.