Author: Howard Levitt
Publication: National Post
Consensual sex is scant insurance against a human rights complaint. With Canadians spending so much of their waking day at work, it is not surprising the workplace has become a primary source of personal relationships. The ubiquitousness of these relationships requires employers to be particularly vigilant that lines are carefully drawn and not crossed.
Zbigniew Augustynowicz, owner of Surrey, B.C.-based Metro Aluminum Products Ltd., asked his delivery driver, Lisa McIntosh, out for a drink. During the evening, he asked if she would date him and she told him she didn’t date married men. When Augustoynowicz falsely told her he was separated, a consensual sexual relationship commenced.
McIntosh learned Augustynowicz was not separated and she told him the relationship was over. He reassured her it would not affect her employment and that everything would return to normal. However, Augustynowicz was not true to his word and he texted her explicit sexual propositions. Her attempts to get him to stop didn’t work until she threatened to call the police.
The ordeal left McIntosh stressed out and her doctor put her on leave for eight to 12 weeks. When she presented the note to her manager, he told her to look for another job because she was the company’s only driver. McIntosh had been just seven months on the job.
Maintaining she had been sexually harassed and forced out of her job, McIntosh filed a human rights complaint with the British Columbia Human Rights Tribunal. It disagreed with the company’s contention that McIntosh was actually a willing participant in the text messaging. Her text messages, it said, reflected no such willingness and while she had repeatedly made it clear the relationship was over, he persisted. It found McIntosh had been forced to leave her job because of sexual harassment. The previous consensual relationship was irrelevant. McIntosh was awarded close to $30,000 in damages despite her short term of employment.
In light of the escalating costs of human rights awards, I suggest the following:
Avoid conflict of interest Managers who enter a relationship with a direct report should be required to declare their relationship. That way, the employer can take the appropriate steps to ensure the reporting relationship is adjusted so there is no potential conflict.
Monitor the situation An employee who is having a relationship with a superior should be interviewed periodically to reduce the likelihood of allegations of duress.
Policy commitment Every employer should have a sexual harassment policy, which delineates the boundaries of acceptable and unacceptable behaviours. The communication of such a policy to employees can reduce employer liability.
Limit fallout When office relationships end, often one party is hurt and angry. Residual bitterness or continuing interest of a former partner is conducive to allegations of harassment. If an employer learns of such behaviour, it can invoke its sexual harassment policy to put an immediate end to it.
Investigate If an employee who has been involved in a relationship with a colleague or manager shows patterns of absenteeism or applies for sick leave, investigate. When McIntosh sought a medical leave, that should have been a red flag for the employer.