In what the arbitration panel called a tragic case, an employee of the City of Calgary has been awarded $800,000 in damages (The City of Calgary and CUPE, Local 38, 2013 CanLII 88297). The employee, who worked as a clerk in the City’s Roads division, was sexually assaulted on a number of occasions by a senior foreman. The City’s response was not only inadequate, it was, to quote the panel. “…a total failure on the part of those responsible to meet the obligations under the Collective Agreement, human rights legislation, occupational health and safety legislation and the City’s Respectful Workplace Policy”.

What went so horribly wrong?  To begin, the employee was sexually assaulted by a foreman (her supervisor) on 8 occasions. These assaults consisted of the foreman fondling her.  When the employee reported the assaults to her manager, the manager arranged for an extension to be put on her desk so that the employee could not be so easily approached from behind. This extension was installed two weeks after the employee complained of harassment. The manager then left on a one-week vacation and left the foreman in charge of the District. While the employee had not given the manager the name of the person who had assaulted her, the panel concluded that the manager had enough information to “have at least a clue” as to who was perpetrating the harassment.

When the foreman continued assaulting the employee, and fearing that she would not be believed, the employee and her husband installed a spy camera near her desk, which captured images of the foreman assaulting the employee the very next day. When the employee met with the manager again to report the assaults, and provided the still images from the camera, the necessity for an investigation was discussed, although later the manager described the still images as “inconclusive.”

Three days later, the foreman was suspended with pay and an investigation into the assaults commenced, although it was never completed. Following the foreman’s suspension, the employee arrived to work to find that her keyboard had been sabotaged with what she believed to be rat poison, causing her to be relocated to another facility.

A month later, with the investigation still incomplete, the employee was summoned back to her original office; told that the foreman would return as her supervisor; warned not to make disrespectful comments against her colleagues; and asked to meet with a psychiatrist. When the employee subsequently went on vacation, she was required to provide a “fitness to return to work certificate”; to submit to a review of the workplace code of conduct; and return her keys to certain doors without explanation.

Dissatisfied with the treatment she had received and the lack of response to her complaint, all of which resulted in her taking an indefinite sick leave, the employee commenced a human rights claim alleging sexual discrimination.

An Alberta arbitration board had no trouble finding in favour of the employee, commenting that she “was treated as a problem to be managed, as opposed to a victim to be supported.”

In assessing the case, the arbitration panel listed how the City mishandled the employee’s complaint, which included the following:

• Instead of immediately investigating the alleged assaults, the employee’s manager left on vacation and left the alleged assaulting party in charge.
• The manager did not adequately assess the evidence of assault (i.e. still photos) provided to him before concluding that the “evidence was inconclusive”
• The City did not remove the employee from the workplace or take any steps to ensure there were no reprisals until rat poison was spread on her keyboard;
• The City failed to complete the investigation into the assault and/or rat poison allegations;
• The City warned the employee to refrain from being “disrespectful” while not addressing her complaints; and
• The City unnecessarily required medical assessments and “fitness to return to work certificate” even though the employee had not claimed she was sick.

The arbitration panel determined that a large damage award that recognized the severity of the sexual assaults; the City’s lack of response; and the employee’s ongoing turmoil over this matter was warranted. The arbitration panel commented that in view of the employee’s mental distress and ongoing two-year sick leave, “it is impossible to predict with certainty when [the employee] might be able to resume some useful work or even whether she will ever be able to work…the effect of the events upon her and her family have been devastative, with no end in sight…” For these reasons, the arbitration panel affixed a damage award of over $800,000 including general damages for mental distress and lost income (until the employee’s retirement), noting yet again that what it found “particularly troubling [was] what occurred after [the employee] reported the sexual assaults perpetrated upon her.”

The arbitration panel’s attention to the City’s response (or lack thereof) suggests that minimizing a complaint of harassment – or in this case sexual assault – can be costly. A timely, complete and well-documented investigation not only provides an internal resolution but could also serve as a defence where an employee disagrees with the course of action taken. Even where doubts exist with respect to a complaint, refusing to honour the obligations set out in the Occupational Health and Safety Act, and one’s own policies, with respect to workplace harassment and violence, either by not properly investigating the complaint or “blaming” and disciplining the complainant, will only invite further legal liability.

Janice Rubin and Parisa Nikfarjam