Donna Wamsley v. Ed Green Blueprinting Ltd., 2010 HRTO 1491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Wamsley

Applicant

-and-

Ed Green Blueprinting Ltd.

Respondent

DECISION

Adjudicator: Jennifer Scott

Date: July 8, 2010

Citation: 2010 HRTO 1491

Indexed as: Wamsley v. Ed Green Blueprinting

APPEARANCES BY

Donna Wamsley, Applicant ) On Her Own Behalf

Ed Green Blueprinting Ltd., Respondent ) Charles Forster, Counsel

The Facts

1In her application under the Human Rights Code, R.S.O. 1990, c. H. 19 (the "Code"), the applicant alleges that she was sexually harassed in the workplace by a Xerox service technician and was discriminated against on the basis of her sex when the respondent did not provide her with computer training and reduced her hours of employment.

2Ed Green Blueprinting Ltd. ("Ed Green" or the "respondent") prints drawings, specification sheets and plans for the construction industry. It has locations in Kitchener and Cambridge. The company was started by the applicant's father, Ed Green. The Kitchener location is quite small and the office design is open-concept.

3The applicant and her brother Paul Green commenced employment with Ed Green in the mid 1980s in the Kitchener location. During the past 25 years, the applicant has worked for the company for lengthy periods of time, but left the company twice to pursue other employment opportunities. Paul Green has remained employed with the respondent throughout this period of time.

4Ed Green was sold to Wade Tech in June 2007. A third printing business was purchased by Wade Tech in Guelph in 2008. Today, Wade Tech owns eight small printing businesses.

5David Newton is one of the three new owners of Ed Green. In 2008, he was at the Kitchener location once or twice a week.

6At the time Ed Green was sold, the company had four employees: a driver, two printer helpers – the applicant and another employee named Lucy – who did the post-finishing work, and the applicant's brother Paul Green, who did the pre-finishing work. The pre-finishing work involved the use of digital files for printing. The post-finishing work involved preparing the finished product for distribution.

7The applicant also did the accounting for the company. Paul Green was the applicant's supervisor.

8During the first year after purchasing Ed Green, Wade Tech made no changes to the business. In 2008, Lucy left the company and Dan Racine was hired in April 2008. Mr. Racine had worked for Kinko's and had experience in the printing industry although not with the particular software used by the respondent. Mr. Racine was trained by the respondent on the pre-finishing work.

9In 2008, the company implemented equipment and software changes to run the business and continue to grow it.

10In the summer of 2008, Ed Green's business was significantly impacted by the downturn in the economy. No employees were laid off, but work hours were reduced.

11In October 2008, a Xerox technician who was servicing some of the equipment at Ed Green swatted the applicant's buttocks with a rolled-up blueprint. The technician was at Ed Green on a regular basis. The applicant testified he was there once or twice a week. Paul Green testified he was there every two or three weeks.

12The applicant was very upset by this incident and reported it to Paul Green. She was crying at the time. The applicant testified she had complained to Paul Green previously about sexual comments made by the technician. Paul Green has no recollection of the applicant's prior complaints.

13Paul Green spoke to the applicant about the incident. Mr. Green then spoke to the technician about the incident. The technician admitted that he had swatted the applicant's buttocks. Mr. Green brought the applicant and the technician together and the technician apologized for his conduct. The applicant does not believe she should have been required to meet face-to-face with the technician.

14Mr. Green testified the applicant was very upset about the incident and wanted Mr. Green to report it to Xerox. Mr. Green dissuaded her from doing so and asked her if she was sure she wanted to "ruin the man's life over such a stupid mistake".

15The technician continued to service the equipment at Ed Green and there were no further incidents. The applicant testified that she tried to stay out of his way when he was at Ed Green. Both Paul Green and the applicant testified that the applicant was uncomfortable with the technician's presence in the workplace.

16Xerox had two or three service technicians who serviced the equipment at Ed Green.

17In January 2009, the applicant wrote to Mr. Newton complaining about a number of things including: (a) not being given time off for surgery; (b) being required to drive when she was not comfortable doing so because of her arthritis and an earlier accident; (c) being told not to answer phones; (d) the sexual misconduct of the service technician; (e) copying documents in contravention of copyright law; and (f) using equipment that was not Canadian Standards Association-approved.

18Mr. Newton met with the applicant about the incident with the Xerox technician. The applicant testified that Mr. Newton told her he could not act unless there was a police report. Mr. Newton testified he was under the impression that because of the egregious nature of sexual harassment, it had to be dealt with by the authorities. He told the applicant she should consider reporting the incident. Mr. Newton testified that he told the applicant he was prepared to take the matter to Xerox, but that the applicant did not ask him to do so.

19Mr. Newton testified that he believed he should have been told about the incident at the time it occurred. Had he been involved, he would have spoken to the applicant alone and not together with the person accused of harassment. Other than that, he believes Mr. Green handled the incident quite well.

20In late 2008/2009, the applicant's work hours were decreased. From August 2008 to September 2009, Mr. Racine's work hours were consistently higher than the applicant's hours.

21The applicant was on sick leave from January 19 to April 6, 2009, because of surgery.

22On July 31, 2009, the applicant reported the incident with the technician to the police. No charges were laid.

23On Friday, August 21, 2009, the applicant became upset in the workplace because she was told to go home early. The applicant swore at Mr. Green. Mr. Green reported this incident to Mr. Newton. On Monday, August 24, 2009, Mr. Newton met with the applicant about this incident and she was asked to work in the Guelph office. The applicant worked in the Guelph office for the next two days and went on sick leave on August 27, 2009.

24In September 2009, while on sick leave, the applicant resigned her employment with Ed Green. The applicant testified she quit her job because of the reduction in her work hours.

25Ed Green does not have a human rights complaints policy. It is in the process of preparing a harassment policy in compliance with Bill 168, which amends the Occupational Health and Safety Act, R.S.O. 1990, c. O.1, dealing with violence and harassment in the workplace. There is no evidence before me that Paul Green has received human rights or harassment training.

ANALYSIS

Sexual Harassment

26An employer may be held liable for the way in which it responds to a complaint of discrimination. This Tribunal has held a respondent owes a duty to act reasonably and respond adequately to a complaint of an alleged violation of the Code. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30 and Newton v. Toronto (City), 2010 HRTO 1023. Three criteria will be considered in order to determine whether a respondent has met this obligation:

(a) Awareness of issues of discrimination/harassment, Policy, Complaint Mechanism and Training: Was there an awareness of issues of discrimination and harassment in the workplace at the time of the incident? Was there a suitable anti-discrimination/harassment policy? Was there a proper complaint mechanism in place? Was adequate training given to management and employees;

(b) Post-Complaint: Seriousness, Promptness, Taking Care of its Employee, Investigation and Action: Once an internal complaint was made, did the employer treat it seriously? Did it deal with the matter promptly and sensitively? Did it reasonably investigate and act; and

(c) Resolution of the Complaint (including providing the Complainant with a Healthy Work Environment) and Communication: Did the employer provide a reasonable resolution in the circumstances? If the complainant chose to return to work, could the employer provide her/him with a healthy, discrimination-free work environment? Did it communicate its findings and actions to the complainant?

27The Tribunal in Laskowska also stated the following (at para. 60):

While the above three elements are of a general nature, their application must retain some flexibility to take into account the unique facts of each case. The standard is one of reasonableness, not correctness or perfection. There may have been several options – all reasonable – open to the employer. The employer need not satisfy each element in every case in order to be judged to have acted reasonably, although that would be the exception rather than the norm. One must look at each element individually and then in the aggregate before passing judgment on whether the employer acted reasonably.

28In this case, there was no human rights policy or complaints mechanism in place at Ed Green. Mr. Green dealt with the incident without any human rights training. He conceded during his testimony that he should have reported the incident to Mr. Newton. It is important to note that Mr. Green reported the applicant swearing at him to Mr. Newton and she was transferred to the Guelph office. The sexual harassment incident was more serious and yet it was not reported to Mr. Newton. Mr. Newton agreed the incident should have been reported to him. It was particularly important to do so in this case because of the sibling relationship between Mr. Green and the applicant. Mr. Green's ability to deal with the incident objectively may have been compromised by their relationship. Under the new harassment policy, not yet in place, all allegations of harassment are reported to Mr. Newton.

29While Mr. Green took the matter seriously by investigating it, he failed to respond appropriately. Mr. Green and the respondent are obligated to ensure a discrimination-free work environment. The applicant was clearly very upset by the incident and wanted it reported to Xerox. She did not want to continue to work in the presence of the technician, who was there on a regular basis. The incident was constructed by Mr. Green as a "stupid mistake" and the applicant was pressured to abandon her request that the incident be reported when Mr. Green asked her if she was sure she wanted to "ruin the technician's life". When Mr. Newton became aware of the incident he acknowledged its seriousness and suggested that it should be reported to the authorities, which I take to mean the police. Regardless of whether or not the incident was reported to the police, the respondent was obligated to deal with it appropriately. It failed to do so.

30The respondent argued that it was not obligated to deal with the harassment for two reasons: it was a single incident and the alleged harasser was not an employee of the respondent. I do not accept this submission for the simple reason that the respondent took responsibility over the incident and investigated it. The respondent cannot now argue it did not have to act. Once it acted, its handling of the matter can be reviewed in order to determine whether the respondent acted reasonably and appropriately.

31Although it is not necessary for me to decide this point, I find the respondent was correct when it acted on the complaint. An employer has a duty to intervene to stop the harassment of its employees by third parties. This is particularly so when they attend the workplace on a regular basis and impact the work environment. The duty to act applies to a single incident of harassment. The Tribunal has recognized that a single incident, if serious, may meet the definition of harassment. See, for example, Murchie v. JB's Mongolian Grill, 2006 HRTO 33 and Romano v. 1577118 Ontario Inc., 2008 HRTO 9. The employer recognized the egregious nature of the incident when Mr. Newton suggested to the applicant that it be reported to the police. Given the nature of the conduct at issue, I find it constitutes harassment under the Code.

32The respondent failed in its obligation under the Code to respond reasonably and adequately to the applicant's complaint of sexual harassment. The respondent failed to consider the applicant's discomfort with the technician's continuing presence in the workplace. There were two or three other technicians that serviced the respondent's equipment and a change in personnel would have easily accommodated the applicant's expressed unease. Instead, the responsibility for dealing with the incident was laid to rest at the applicant's feet and she was given two very mixed messages: not to ruin the technician's life and to call the police. The respondent failed to realize that it bore the responsibility for dealing with the complaint, not the applicant.

Sex Discrimination

33The applicant believes she was discriminated against because of the reduction in her work hours after Wade Tech purchased Ed Green in 2007. The respondent claims the applicant's hours were reduced because she was unable to do the pre-finishing work that Mr. Racine was able to do. The applicant claims she should have been trained to do this work and the failure to do so constitutes discrimination on the basis of her sex. The applicant does not assert she was discriminated against prior to the purchase of Ed Green by Wade Tech.

34In reviewing the evidence before me, it is clear that from August 2008 to September 2009, the applicant's hours were less than Mr. Racine's hours, although not significantly so. I accept that the applicant's hours were reduced because the applicant was not trained to do the pre-finishing work.

35The applicant complains that she should have been trained to do pre-finishing work. The applicant has always done the post-finishing work, both before and after the sale of the business. She does not assert that the failure of the company to train her before the sale was discriminatory. It is therefore unclear to me how the failure to train the applicant post-sale is discriminatory. In her letter to Mr. Newton in January 2009, the applicant complained about numerous issues in the workplace. She did not complain about not being trained in the pre-finishing work.

36In 2008/2009, the applicant's hours were slightly reduced because of the downturn in the economy and because she did not have the skills to do the pre-finishing work. These reasons are unrelated to the applicant's sex and accordingly, her complaint on this basis is dismissed.

Remedy

37Upon finding liability on the part of the respondent for the way in which it dealt with the sexual harassment complaint, I must now assess the extent of that liability by determining the applicant's entitlement to damages. In ADGA Group Consultants Inc. v. Lane, 2008 CanLII 39605 (ON S.C.D.C.), the court held tribunals should consider the following subjective factors when awarding damages for the loss of the right to be free from discrimination: humiliation, hurt feelings, the loss of self-respect, dignity and confidence, the experience of victimization, vulnerability, and the seriousness of the offensive treatment. In addition to the subjective effects of discrimination on an applicant, the Tribunal may incorporate an objective component to the quantification of monetary compensation by considering the circumstances surrounding the discrimination. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; appeal dismissed, 2010 ONSC 278. In assessing the amount of compensation, the Tribunal is mindful of not setting the amount too low so as to avoid trivializing the social importance of the Code by effectively creating a "license fee" to discriminate. See Sanford v. Koop, 2005 HRTO 53 at para. 34.

38The applicant is seeking $5,000.00 in compensation for the discrimination she experienced. I find this is an appropriate award for the following reasons. The applicant was very upset about the way her complaint was dealt with by the respondent. She believes there should be a policy in place and a written procedure for addressing complaints. She is right about that. The respondent is responsible for ensuring a discrimination-free workplace. The respondent failed to meet its responsibility. The applicant was pressured to give up her request that Xerox be informed. The technician's interests were put far ahead of the applicant's. She was required to continue to work in the same small work environment with the technician despite her discomfort and her manager's knowledge of her discomfort. The way in which her complaint was addressed affected her perception of her entire work environment. While her other complaints were not discrimination-related, her discontent was likely influenced by the failure of the respondent to take her harassment complaint seriously. The incident was described by her manager as a "stupid mistake". It is hard to understand how physically touching a woman's buttocks can be characterized in this way and it demonstrates a lack of understanding regarding sexual harassment and its impact on women.

39The applicant is not entitled to any lost wages. The applicant resigned her employment because of the reduction in her work hours. This was unrelated to any discrimination on the part of the respondent. The applicant's claim for lost wages is therefore denied.

ORDER

40The corporate respondent shall pay the applicant $5,000.00 for loss arising from the infringement of her rights under the Code plus pre-judgement interest on this amount payable in accordance with section 128 of the Courts of Justice Act, R.S.O. 1990, c. C.43, from the date of the Application, July 28, 2009.