Shortly after starting work at Metro Aluminum Products Ltd. as a
driver, Ms. McIntosh entered into a consensual, sexual relationship
with Metro's owner, Zbigniew Augustynowicz. In the course
of their relationship, the parties exchanged texts of a sexual
nature, so-called "sexting".
Several months later, Ms. McIntosh formally ended the
relationship but Mr. Augustynowicz continued to send her
inappropriate text messages such as "hi sexy",
"I need a nooner" and "now I know why
you are single". The messages got progressively more
offensive. Despite ignoring the messages or responding by making it
clear to him that such messages were unwelcome, Mr. Augustynowicz
continued to send messages until Ms. McIntosh threatened to call
In its decision, the Tribunal found that Ms. McIntosh had
successfully established that she was subjected to sexual
harassment in the course of her employment. Mr. Augustynowicz was
clearly in a position of authority and responsible for the terms
and conditions of Ms. McIntosh's employment and for
ensuring a workplace free of sexual harassment. He failed in this
responsibility by repeatedly making sexual comments and
propositions that were "offensive, inappropriate, and
unlawful in an employment context." As consenting adults,
the parties were entitled to enter into a sexual relationship,
however, once the relationship ended and she communicated to him
that she no longer wanted to engage in communications or conduct of
a sexual nature, Mr. Augustynowicz knew, or ought to have known,
that the text messages were unwelcome and were adversely impacting
the work environment.
As a remedy, the Tribunal ordered that Metro and Mr.
Augustynowicz cease all discriminatory conduct and a declaration
that the conduct was discriminatory and contrary to the Human Rights Code(British
Columbia). Ms. McIntosh was awarded $14,493.80 as
compensation for lost wages, $2,900.85 as reimbursement for
expenses incurred in pursuing her claim, and $12,500 as damages for
injury to dignity, feelings and self-respect.
This case is yet another example of the impact that technology
is having on the workplace and serves as a reminder that
non-traditional communication tools (including those that are not
typically or readily monitored such as social networking sites and
text messages) can result in employer liability. To mitigate this
risk, employers should ensure that they have appropriate safeguards
and policies in place that are consistently updated and
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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