Audacity can test the tolerance of even a liberal human rights
Adele Kafer, a long-term sales employee with Sleep Country
Canada in Vancouver, had been uniformly successful over her tenure.
But her interactions with one colleague, Arif Arjania, were another
matter. Kafer alleged Arjania had shouted a derogatory sexual
reference at her and he made verbal advances toward her. His last
communication suggested she must be gay because she refused his
Kafer complained to her area sales manager. The company sprang
into action. Arjania was spoken to, then issued a disciplinary
warning he would be fired if it happened again. He also apologized
Sleep Country's human resources manager urged Kafer to
return to work, and suggested the company would use the issues she
had raised to train staff. Rather than being reassured, Kafer felt
threatened by this suggestion, believing other staff would
recognize the incidents related to her. As result, Kafer left on
sick leave, never to return. She then filed a complaint of sexual
harassment and discrimination on the grounds of sexual orientation
with The British Columbia Human Rights Tribunal against both her
employer and Arjania.
Sleep Country candidly acknowleged Kafer had worked in stores
where sexually explicit banter and innuendo between staff were
considered reasonable social interaction. Significantly, she had
not merely tolerated this conduct but had actively participated in
and even instigated it at times. Eleven affidavits from co-workers
were filed detailing vivid examples of Kafer's contribution to
the crude conversations.
Arjania too was straight-up, readily admitting he had made
sexual comments directed at her but claimed they were made between
two friendly co-workers who historically engaged in this kind of
banter. And he had immediately apologized to Kafer when he learned
she had taken offence.
Kafer, in return conceded she had engaged in sexual banter with
co-workers, including Arjania, and had made explicit sexual
references during those discussions. However, she maintained she
did not have to tolerate Arjania's emails alluding to her
Arlene Tyshynski, vice-chair of the tribunal, reviewed the
evidence and dismissed Kafer's complaint. In light of the
overwhelming evidence that Kafer had actively participated in crude
sexualized exchanges, no reasonable person would believe
Arjania's comments would be unwelcome. The tribunal noted that
Kafer and Arjania otherwise had gotten along well. Kafer had asked
that Arjania be transferred into her store and then proceeded to
confide in him her sexual interests. In the context of their
relationship, sexual harassment and discrimination could not be
Sleep Country's experience in avoiding the wrath of the
Human Rights Tribunal, can be instructive for other Canadian
Clean up your workplace It is no defence to say
your workplace has a crude and sexualized bantering culture. Such
an admission is usually dispositively damning. An employer has an
affirmative obligation to provide a workplace free of sexual
Institute a policy Define what behaviours are
prohibited; create an internal complaint mechanism; make it clear
violations will not be tolerated and that repercussions include
dismissal for just cause.
Promptly and effectively investigate On receipt
of Kafer's complaint, Sleep Country immediately investigated
the complaint; disciplined Arjania and reassured Kafer it had
addressed her concerns.
Train staff Sexualized work environments are
breeding grounds for lawsuits. The best antidote is to meticulously
outline what type of exchanges are prohibited.
Refrain from retaliation Assure the complainant
her job and status are not threatened. Although Kafer had not
returned from her sick leave, the tribunal noted that her job
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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