Sexual assault in the workplace is an issue that impacts an organization in multiple ways. The law recognizes that multiple heads of damages, including human rights, punitive damages and mental distress damage flow from a finding of sexual assault.
This blog post will cover sexual harassment/assault in the workplace generally, and also how the new case of Silvera v. Olympia Jewellery Corporation, 2015 ONSC 3760 (CanLII) is a recent decision dealing with this issue and expands on how an employer will be found liable for failing to address issues of sexual assault within its workplace.
The Plaintiff was awarded $300,000 among various heads of damage for the conduct of the employer.
Silvera v. Olympia Jewellery Corporation
Throughout her employment, Morris Bazik, the Defendant’s Operation Manager and the Plaintiff’s direct supervisor, subjected the Plaintiff to racist comments (the Plaintiff was of Jamaican origin), sexual harassment and sexual assault. The issues began when the Plaintiff started to work late with Morris alone, and Morris began to ask questions regarding the Plaintiff’s love life and past. Eventually, Morris’ comments escalated into physical advances, which the Plaintiff advised him were unwanted. Following the initial disclosure that the advances were not appreciated, however, Morris’ behaviour did not change. In fact, he continued more aggressively, purchasing lavish gifts for the Plaintiff in an attempt to continue the harassment and in the hopes of persuading the Plaintiff to reciprocate.
Following this period of time in which the advances occurred, the Plaintiff, who had at the time undergone dental surgery which resulted in pain requiring her to take painkillers, was forced to take time off work due to allegations that she was unfit to work. The Defendant then proceeded to terminate the Plaintiff on allegations of job abandonment.
While Morris was listed as a personal Defendant to the action, the Defendant employer was also found liable for Morris’ behaviour on the grounds that his position and the Defendant’s actions in providing him with a certain level of responsibility had been facilitative to the sexual harassment and assault to which the Plaintiff was subjected, actions which undoubtedly had affected the lives of the Plaintiff and her daughter. Ultimately, Morris’ behaviour and the harm it caused the Plaintiff were condoned by the Defendant and made available to Morris via the Defendant’s actions in charging him with significant responsibility.
The Plaintiff, in her wrongful dismissal suit against Morris and the Defendant, was successful in establishing joint liability as her employer and Morris were both jointly and severally liable for general and aggravated damages, punitive damages, damages for human rights violations, damages to compensate the Plaintiff for future medical care associated with her psychological issues, aggravated by Morris’ conduct and the Defendant’s condonation of same; and, damages under the Family Law Act in consideration of the fact that the Plaintiff’s mental state, made worse by the Defendant’s behaviour, had been found to affect the Plaintiff’s daughter’s livelihood as her emotional state was quite complicated following the series of interactions between herself and Morris.
If you have been sexually harassed or assaulted at work, contact Monkhouse Law today for a free consultation.
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