[76]        I also found some of his testimony to be implausible.  For example, he admitted that he had given the applicant chocolate and roses, but denied that his act was a romantic or sexual advance.  Even if it is true that he also gave chocolate and roses to other women in the bar, in my view, it is a notorious and undisputed fact that when a man gives a woman both chocolate and roses in mainstream society, the act has romantic connotations.

Adjudicator Ken Bhattacharjee, Smith v. Rover’s Rest and Bruce Dorman

Two decisions addressing sexual harassment were recently released by Adjudicator Ken Bhattacharjee.  Both involved some fairly extreme facts.  What may be even more extreme is that both cases occurred recently in Canada.  Employers and small business owners will want to know more about these cases.

What are the cases and what happened?

In Smith and The Rover’s Rest and Bruce Dorman (“Rover’s Rest”), the applicant was a bartender.  In Vipond and Ben Wicks Pub and Bistro and David Doherty (“Ben Wicks”), the applicant was a waitress.    Both complained of similar harassment by co-workers who just happened to be owner/managers of bars.  Both managers, it turned out, were jealous of the applicant’s when they spurned “romantic” advances and developed relationships with male customers.

In Rover’s Rest the respondent was fixated on the bartenders “buttocks”, patting her frequently with his hands and telling her she had a “nice ass”, etc.  On one occasion, after returning from a golf tournament, he told her he was having a hard time concentrating on the golf course because all he could think about was “her ass”.  He gave her chocolate and roses.  When she threw the chocolate out and left the roses on the bar, he got angry.  The situation went from just plain wrong to bizarre and eventually the bartender was terminated.  Her manager said she was terminated because: “she was damaging the reputation of [the] bar … customers told him that she made crude jokes”.  The termination letter was delivered to her home.  It did not say she was being terminated for cause, but said, in part:

Your leaving here is a very personal loss for me, I have told you how I feel about you, (still do) and was disappointed when you decided that we couldn’t have the relationship that I wanted.  But that’s life, we all make our own choices, and then have to live with them.

The applicant received several more letters, each increasingly more repugnant and insulting to the applicant.  If you read the extracts from those letters in the decision, you will understand why the applicant was left feeling depressed and unable to find a job

In Ben Wicks, after the bar closed one night, the waitress was subject to incredibly bizarre sexual comments by her intoxicated manager.  When the waitress reminded him he was married, he told her she was the “only person whom he would cheat on his wife with”.  Although her manager didn’t make any further explicit sexual advances towards her, he occasionally did put his hand on her when he was talking and she had to tell him not to touch her.  The manager also got jealous about her interactions with male customers.  On one occasion, he pulled her into a back room and screamed at her telling her that she should be working instead of talking to a customer.  Eventually, after her horus were substantially cut back, the applicant resigned.

Was what happened sexual harassment?

If you guessed “yes”, you’re right.  In both cases, Adjudicator Bhattacharjee found the actions amounted to sexual harassment.  Here’s what he said in Rover’s Rest:

[120]     I find that, overall, the individual respondent’s Code-related mistreatment of the applicant was serious. The individual respondent subjected the applicant to sexual harassment and advances, a poisoned work environment, discrimination and harassment because of her sex, and reprisals, by, among other things, repeatedly asking her out, invading her personal space, touching her body, hugging her, patting her buttocks, making comments about her buttocks, stating that he was going smack her bare ass, giving her chocolate and roses, monitoring her interactions with male customers, wrongfully accusing her of sleeping with those customers, terminating her employment, delivering sexist and misogynist letters to her, intimidating her by making repeated, uninvited visits to her house, and making an implicit threat of physical violence.

And, here’s the verdict out of Ben Wicks:

[25]  …I find that the individual respondent harassed the applicant by engaging in a course of vexatious comment or conduct towards her that was known or ought reasonably to have been known to be unwelcome.  …

What should employers do to ensuer that this does not happen?

All employers should be aware of legislated obligations.  There is no excuse for not having a policy setting out what is expected of employees.  If you do not have one - get one.  If you have a policy, get it out, make sure employees are aware of it and that it’s up to date.

What goes in a policy?

Start with the definition of “sexual harassment” provided by the Supreme Court of Canada almost 25 years ago in Janzen v. Platy Enterprises:

  • Unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.

Look around your workplace and consider what types of sexual harassment might occur there.  Are there any harassment cases you should be aware of particular to your workplace?  Describe what type of behaviour is prohibited, but at the same time make sure employees know your policy examples are not exhaustive.  Have a complaint mechanism and thoroughly investigate alleged sexual harassment.  Make sure everyone is aware of the policy.   Last, but not least, take disciplinary steps if you confirm that it’s happening at your workplace and be consistent.

What’s the cost if you don’t?

Aside from what is probably the worst publicity a company can get (decisions are more publicly available and circulated than ever before), the applicant in Rover’s Rest was awarded $35,000 for violation of her right to be free from discrimination and for injury to dignity, feelings and self-respect. The applicant in Ben Wicks was awarded $18,000.  These damages were in addition to other damages for lost income, counselling and harassment training in the workplace.