A Kelowna woman has been awarded a $25,000 payment from her former employer relating to their role in a sexual harassment complaint.
The woman, whose name is being withheld due to the nature of the allegations, was working at Bouchons Bistro, when she claims she was subjected to sexual harassment by a coworker in a supervisory position, according to a decision by the Human Rights Tribunal member Kathleen Smith.
The man accused of harassing the woman was not named in the decision but his activities at Bouchons, an arm of Gastronome Enterprises Ltd., which is owned by Stephane Facon, were laid out in the hearing and summarised in the decision.
Smith wrote that from August 2017 to March 2019 the man sent text messages that had sexually explicit content, made sexual comments and propositions for sex, engaged in sexual gestures, jokes and innuendo and forced physical contact, including sexual touching and exposure of genitals.
It was such an onslaught that the woman started recording the incidents, though she didn’t report them to her employer.
“(The woman) worried about her job, particularly after Gastronome promoted the employee. The employee made decisions about the schedule which could directly impact her hours and earnings, which she relied on to support her family. (The woman) did not want to be seen as a troublemaker, unprofessional or a rat,” Smith wrote.
“She also testified in detail about her fear of being blamed and not believed. She worried that reporting could make things worse for her at work or result in her getting fired.”
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She was eventually fired, for reasons the Human Rights Tribunal ruled weren’t to do with the harassment but rather her complaints about how the tipping process worked. After being fired, however, she sought legal counsel and reported the abuse.
“Because I accept that all the sexual harassment occurred as alleged by (the woman) and because the parties agree that the employee’s conduct amounts to sexual harassment and sex discrimination, it is not necessary for me to provide an in-depth analysis of that issue. Instead, I move directly to the question of employer liability for sexual harassment that occurs in the course of employment,” Smith wrote.
Gastronome claimed it didn’t know about the harassment so it couldn’t be on the hook for it, however, Smith disagreed.
“In short, Gastronome is responsible for the discriminatory conduct of the employee which occurred in his role as an employee in the course of employment,” Smith wrote.
The company, Smith wrote, needed to have appropriate policies and procedures in place.
“Here, I observe that Gastronome had no policy, complaint mechanism, or training in place regarding discrimination or sexual harassment at the relevant time,” Smith wrote.
Smith said in the aftermath of the harassment the woman suffered stress and anxiety, and said it was “horrible and humiliating” and she did not want anyone to
know about it.
“She had and continues to have nightmares. It made her want to leave work and feel sick to her stomach,” Smith said. “She had other physical symptoms including a clenched jaw and headaches. She feared she would lose her job if she reported the employee. She feared retaliation by the employee if she reported the sexual harassment.”
Smith said the woman also feared her coworkers would ostracize her if she reported the sexual harassment, which might force her to leave the job. As it is, when the abuse was reported to her then-employer, he discussed it with others and stories did circulate.
For all this, the woman asked for somewhere in the area of $40,000 to $50,000.
The Gastronome representative asked the Tribunal to consider other factors, including that the sexual harassment was perpetrated by the harasser, the woman settled with him outside of the hearing, and the amount of that settlement is not known since the owner did not participate in the hearing.
The company representative also argued that it is relevant that the Facons did not know about the sexual harassment at the time, were “blindsided” with that information, and have done what they could do to address this from occurring in the future.
They also said it would have fired the accused harasser had it known about the sexual harassment, but it was unable to reprimand him because he resigned without notice in early April before the company became aware of the allegations.
Smith, in the end, decided that a $25,000 payout captured the serious nature of the sexual harassment the woman had to endure on an ongoing basis, including sexual touching and harassment by text message which is particularly insidious.
“It also captures the difficult context (the woman) found herself in, where the employee became her direct manager, had the ear of the employer, and she needed the job to support her family,” Smith wrote.
“It also reflects the significant impact including feelings of disgust, humiliation, physical illness, and exhaustion from the ongoing stress and anxiety.”
If you or someone you know has been a victim of sexual assault or is involved in an abusive situation, please visit the Canadian Resource Centre for Victims of Crime for help. They are also reachable toll-free at 1-877-232-2610.
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