At Pharos Restaurant, the appellants worked as waitresses. The facts are set out in the fall of 1982. Platy Enterprises Ltd. is the owner of Pharos Restaurant and also manages the same. The manager of the Pharos Restaurant was the President of Platy Enterprises Ltd.
During the course of her employment, J witnessed sexual advances and undesirable encounters by another employee. Her efforts of trying to stop the same were in vain. The offender was, in fact, a cook and had no direct authority over the waitress. However, it was made to appear by the manager and the offending employee, that the latter could give instructions to the waitress J. Such conduct of alleged sexual harassment persisted for more than 30 days. Thereafter, J made a formal objection to such conduct by her co-employee. Post J’s making of such an objection, the aforesaid sexual advances and harassment stopped. However, this was replaced by excessively rude and uncooperative behavior. There was a case of excessive verbal abuse and reprimand without reason. Thereafter, a complaint was made by J to the manager regarding the same. However, the manager didn’t take any steps to prevent it or mitigate it. Such conduct on part of the offending employee continued. Finally, after some time J was dismissed by the manager.
G, another employee in the same restaurant, soon thereafter also found herself at the receiving end of the same problems. She, too, complained to the manager after which although the sexual advances and harassment stopped, there was a continued spate of verbal abuses and non-cooperation at work along with unjustified reprimand. She was finally terminated by the manager.
Subsequently, the present appellants approached the Manitoba Human Rights Commission and filed a complaint against Pharos Restaurant and Platy Enterprises Ltd. along with its owners, agents and servants. It was found that the appellants had indeed been subject to sexual harassment at work place as per to s. 6(1) of the Human Rights Act. Therefore, exemplary damages and those for loss of wages were awarded. This decision was appealed before the Court of Queen’s Bench. The Bench upheld the adjudicator’s decision except as regards the amount of damages, and held that the harassment in the instant case was not based on discrimination based on sex, and therefore the employer could not be held liable.
The present appellants are challenging this order of the Court of Queen’s Bench before the Supreme Court of Canada.
ISSUES/QUESTIONS OF LAW
The following are the issues that are raised by the appellants in the instant appeal before the Supreme Court of Canada
I. Whether the type of sexual harassment to which the appellants were subjected to is discrimination on the basis of sex?
II. Whether the employer can be held liable for the acts, specifically sexual harassment by its manager?
III. Whether the Court of Appeal erred in reducing the quantum of damages awarded to the appellants by the adjudicator?
IV. Whether the Court of Appeal was correct in ordering costs against the Manitoba Human Rights Commission in regard to the adjudicatory proceedings before it?
DECISION OF THE COURT
On the aforesaid issues, the Supreme Court of Canada ruled as follows
I. The type of sexual harassment to which the appellants were subjected to is discrimination on the basis of sex, and this is not changed by the fact that only some women faced such harassment.
II. The employer should be held jointly and severally liable for the acts, specifically sexual harassment, of its manager.
III. The Court of Appeal erred in reducing the quantum of damages awarded to the appellants by the adjudicator as this case falls under the gamut of sexual harassment and in light of the nature of the complaints, the quantum should not have been reduced.
IV. The Court of Appeal was wrong in ordering costs against the Manitoba Human Rights Commission in regard to the adjudicatory proceedings before it.
Sexual harassment is prohibited by law as it affects the efficiency of an employee at the work place. Further, it is a direct attack against the dignity of an individual, and cannot be tolerated in the modern society. The instant act of harassment was indeed one based on sexual discrimination as only women were at potential risk of such harassment which included sexual advances by a heterosexual male. Male colleagues were not at the risk of such harassment.
The employer should be held liable as when complaints were made to it by the appellants, he failed to take any steps whatsoever to improve the situation and correct the problem. This would go on to show that the employer was also conniving with the offender employee and therefore the employer’s liability would be joint and several.
The Court of Appeal should not have reduced the quantum of compensation as this was a classic case of sexual harassment at the work place based on sexual discrimination.
This decision of the Supreme Court sends out a strong message to the civil society at large that sexual harassment at work place shall not be tolerated. Further, sexual harassment based on sexual discrimination is an even more serious offence, and invites a higher quantum of fine. Further, all employers should make sure that no sexual harassment is taking place at their respective workplaces, failing which, they would also have to share the liability of any such offence jointly and severally.
University/College: University of California
Type of paper: Thesis/Dissertation Chapter
Date: 16 October 2016
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