Record general damages award in Alberta harassment decision
The latest cautionary tale for Alberta employers can be found in the decision of Yaschuk v. Emerson Electric Canada Limited, 2022 AHRC 62, out of the Human Rights Tribunal of Alberta.
The case involved a female employee who was found to have been sexually harassed by her direct supervisor, the Human Resources Manager.
The Director makes reference to several incidents including:
- invited the complainant to view a video, “Movie 43: Ball Neck”, in his office. The video contained sexual content and Forbes emailed a link to the video to the complainant.
- engaged in conversation and joking of a sexual nature in the office.
- referred to the complainant as a credenza on multiple occasions.
- engaged in flirtatious or suggestive behavior and commentary on social occasions outside of the office.
- involved himself in the complainant’s personal relationships.
- made suggestive comments about other women in the office.
In finding for Yaschuk, the Tribunal awarded her a record amount of general damages (in addition to all other damages such lost wages) of $50,000 — a continuation of the upward trend of both courts and administrative/human rights tribunals respecting general damages or damages for pain and suffering.
Key employer mistakes
The employer in this case made some critical mistakes, and one of the most obvious and consequential mistakes was the lack of a formal, external investigation.
We are often asked by our HR clients when it’s appropriate to engage an outside workplace investigator. This case is a textbook example. With any complaint of a sexual nature — particularly when it involves a direct supervisor — it shouldn’t be investigated internally. The investigation is bound to be undermined in terms of its impartiality, credibility, and thoroughness, unlikely to hold up on judicial scrutiny. Furthermore, it can be a colossal waste of time and resources for everyone involved.
In the Yaschuk decision, the Tribunal expressly referred to the fact that the internal investigation found no wrongdoing on the supervisor’s part. It was clear that the employer’s investigation was incomplete and could not support the employer’s conclusion on the issue of harassment.
The result in this case would arguably have been much different had the employer exercised the foresight to retain an external workplace investigation firm to conduct the investigation. The employer’s decision to cut corners by “making inquiries” into the allegations, removed any opportunity for an early dispute resolution with Yaschuk leaving her no choice but to proceed with a complaint. It also compromised its credibility and impartiality before the Tribunal which substituted its own investigation with a much different outcome.
When a sexual or non-sexual harassment complaint is received, slow down, seek out professional advice on the best way to triage that complaint.
Do not haphazardly start “making inquiries” into the matter without first considering whether it is more appropriate to engage a third-party investigator-even for ongoing advice and direction. This will almost always be prudent when dealing with a complaint of a sexual nature or one involving a supervisory employee.
Written by Deborah Prowse, Method partner