Supervisors should be trained to spot harassment in its infancy: court
An Ontario employer has been ordered to pay a former worker one months’ pay for failing to ensure the implementation of its harassment policy.
The Ontario Superior Court of Justice awarded Christine Fanous $1,750, on top of two months’ reasonable notice, after she was dismissed without cause.
Fanous started working for Total Credit Recovery Ltd. (TCR) on July 24, 2000 in its call centre at the age of 24. In October 2001 she was awarded a certificate of recognition and an increase in pay from $1,600 to $1,750 per month — a raise she wasn’t entirely happy with.
On Feb. 19, 2002, a supervisor called Fanous down to the HR department where she was told the company intended to terminate her employment on March 5, 2002, and that she was required to remain on the job during the 14-day notice period. The letter of termination essentially said she was being dismissed for not meeting expectations. Fanous was upset and was escorted out of the building by security. She visited her family doctor that day. The doctor noted she was, “very upset and angry (and) had some physical complaints like heart racing and decreased appetite and insomnia and crying.”
Fanous never returned to TCR to work out the two-week notice period and she was not paid for that time. The court ruled the company did not have just cause to terminate her employment and did not properly warn her that there was an issue with her performance.
“If instant dismissal is contemplated, the warning must explicitly provide that the employee’s job is in jeopardy if poor performance continues,” the court said in awarding her one months’ notice.
The court doubled her notice period by adding an additional month in Wallace damages for the way the employer handled the termination.
But where the case got really interesting is when it came to her claim of sexual harassment.
The court pointed out that individuals claiming a breach of the Human Rights Code, which prohibits sexual harassment, must apply to the Human Rights Commission for relief, not civil courts, citing the Supreme Court of Canada’s 1981 ruling in Bhadauria v. Seneca College of Applied Arts & Technology.
Fanous did file a complaint with the commission but dropped it when she started her court action for wrongful dismissal and sexual harassment. The question then became whether Fanous was precluded from suing for damages for sexual harassment in a civil court.
Interestingly, the court said the answer was no and allowed the sexual harassment suit to proceed.
“I do not believe that Ms. Fanou is precluded from suing for damages for sexual harassment in a civil court despite the Bhadauria case,” the court said. “For it can be argued by analogy that, in relation to the independent contract of employment, the court can imply a term requiring the employer to abide by the Ontario Human Rights Code. A contravention of that code gives rise to a claim in damages for breach of contract.”
Fanous testified that about four months before being fired, a supervisor asked her what she wore when she went to bed. A co-worker interrupted the conversation by telling the supervisor to stop because it was harassment.
A couple of weeks later, the same supervisor engaged in “suggestive sexual winking.” In November 2001 she experienced another disquieting incident. The supervisor approached her and asked her whether she was tired. He then proceeded to put his hands on her and massage her.
Her team leader testified that she knew Fanous and three other women found the supervisor’s sexual remarks offensive. But the team leader did not take the supervisor seriously. She described him as a flirtatious but likeable guy. Fanous did not lodge a complaint about the supervisor with HR because someone else had already done so and nothing had apparently been done about it.
The court said devising sexual harassment policies and pinning them up on bulletin boards are clearly essential for enforcement. TCR did that, but there was no such policy on display in the call centre where Fanous worked.
“However, much more than that is required of an employer if that employer is really intent on providing for his employees an environment truly free of sexual harassment,” the court said. “That employer must take active steps to eradicate this ‘disease’ from the workplace. To expect sexually harassed employees to make their way to HR or to a superior or manager is to live in a world created by Lewis Carroll. Supervisors and managers and, in particular, senior managers, must be trained to spot harassment in its infancy. The company must create an atmosphere where harassed employees know that they can seek relief. The evidence before me does not show that TCR has created such an atmosphere, which is very surprising indeed in this day and age.”
All told, the court awarded her $5,250 in damages.
For more information see:
• Fanous v. Total Credit Recovery Ltd., 2006 CarswellOnt 4527 (Ont. S.C.J.).
The Ontario Superior Court of Justice awarded Christine Fanous $1,750, on top of two months’ reasonable notice, after she was dismissed without cause.
Fanous started working for Total Credit Recovery Ltd. (TCR) on July 24, 2000 in its call centre at the age of 24. In October 2001 she was awarded a certificate of recognition and an increase in pay from $1,600 to $1,750 per month — a raise she wasn’t entirely happy with.
On Feb. 19, 2002, a supervisor called Fanous down to the HR department where she was told the company intended to terminate her employment on March 5, 2002, and that she was required to remain on the job during the 14-day notice period. The letter of termination essentially said she was being dismissed for not meeting expectations. Fanous was upset and was escorted out of the building by security. She visited her family doctor that day. The doctor noted she was, “very upset and angry (and) had some physical complaints like heart racing and decreased appetite and insomnia and crying.”
Fanous never returned to TCR to work out the two-week notice period and she was not paid for that time. The court ruled the company did not have just cause to terminate her employment and did not properly warn her that there was an issue with her performance.
“If instant dismissal is contemplated, the warning must explicitly provide that the employee’s job is in jeopardy if poor performance continues,” the court said in awarding her one months’ notice.
The court doubled her notice period by adding an additional month in Wallace damages for the way the employer handled the termination.
But where the case got really interesting is when it came to her claim of sexual harassment.
The court pointed out that individuals claiming a breach of the Human Rights Code, which prohibits sexual harassment, must apply to the Human Rights Commission for relief, not civil courts, citing the Supreme Court of Canada’s 1981 ruling in Bhadauria v. Seneca College of Applied Arts & Technology.
Fanous did file a complaint with the commission but dropped it when she started her court action for wrongful dismissal and sexual harassment. The question then became whether Fanous was precluded from suing for damages for sexual harassment in a civil court.
Interestingly, the court said the answer was no and allowed the sexual harassment suit to proceed.
“I do not believe that Ms. Fanou is precluded from suing for damages for sexual harassment in a civil court despite the Bhadauria case,” the court said. “For it can be argued by analogy that, in relation to the independent contract of employment, the court can imply a term requiring the employer to abide by the Ontario Human Rights Code. A contravention of that code gives rise to a claim in damages for breach of contract.”
Fanous testified that about four months before being fired, a supervisor asked her what she wore when she went to bed. A co-worker interrupted the conversation by telling the supervisor to stop because it was harassment.
A couple of weeks later, the same supervisor engaged in “suggestive sexual winking.” In November 2001 she experienced another disquieting incident. The supervisor approached her and asked her whether she was tired. He then proceeded to put his hands on her and massage her.
Her team leader testified that she knew Fanous and three other women found the supervisor’s sexual remarks offensive. But the team leader did not take the supervisor seriously. She described him as a flirtatious but likeable guy. Fanous did not lodge a complaint about the supervisor with HR because someone else had already done so and nothing had apparently been done about it.
The court said devising sexual harassment policies and pinning them up on bulletin boards are clearly essential for enforcement. TCR did that, but there was no such policy on display in the call centre where Fanous worked.
“However, much more than that is required of an employer if that employer is really intent on providing for his employees an environment truly free of sexual harassment,” the court said. “That employer must take active steps to eradicate this ‘disease’ from the workplace. To expect sexually harassed employees to make their way to HR or to a superior or manager is to live in a world created by Lewis Carroll. Supervisors and managers and, in particular, senior managers, must be trained to spot harassment in its infancy. The company must create an atmosphere where harassed employees know that they can seek relief. The evidence before me does not show that TCR has created such an atmosphere, which is very surprising indeed in this day and age.”
All told, the court awarded her $5,250 in damages.
For more information see:
• Fanous v. Total Credit Recovery Ltd., 2006 CarswellOnt 4527 (Ont. S.C.J.).
