Woman awarded $50,000 in damages by tribunal after being touched on breast during business trip

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An Alberta woman was awarded $50,000 in damages for injury to dignity after a tribunal ruled she had been touched on her breast and hip by her boss on a business trip.

It’s a tale of a shared lavish hotel suite, a $5,000 plus dinner — and plenty of lessons on what employers can and cannot do.

It also elicited a strong rebuke from the Human Rights Tribunal of Alberta. It said that women should “not be forced to make a choice between career advancement and a safe workplace.”

The background

The woman, CM, was hired by the respondent as its director of quality, health, safety and equipment on Sept. 29, 2014. Her salary at time of hire was $130,000 per year.

On Jan. 1, 2015, she received a raise that took her annual pay to $160,000 a year.

In June 2015, CM was set to perform some quality audits in British Columbia. The owner, JH, decided to go with her and picked her up on June 9, 2015. They took turns driving from Alberta to Vancouver. JH called the Fairmont Pacific Rim Hotel in Vancouver to book a room — he had stayed there before and he liked it.

There was a dermatologist convention taking place in Vancouver, and the hotel only had one room available. It was a suite.

CM said she told JH she was not comfortable sharing a room and asked him to check other hotels. He made some calls, but said nothing else was available and they would go and see the suite at the Fairmont.

It was a luxury room called the “Owner’s Suite.” It had a living and dining room and a 1/2 bathroom on the main level. An internal stairwell led to a second floor which had a master bedroom, full ensuite and an office space. There was a sofa bed in the office, but no walls or a door for privacy.

The suite normally cost $10,000 a night, but they negotiated a rate of $7,500 a night for two nights. CM agreed to sleep in the office space while JH took the bedroom. After settling in and admiring the view, they had some wine, according to the tribunal. CM said she was tired after the long drive and went to take a nap on the sofa bed.

Shortly after, room service arrived with an elaborate meal and JH went upstairs to wake her.

Different versions of events

What happened next was disputed.

JH said he touched CM’s shoulder, told her dinner was ready and went back downstairs.

CM said she woke up and turned her body toward the desk, where she saw JH standing. He then reached over and grabbed her breast and hip. She said, “What the fuck?” and JH went back downstairs.

CM said she then went downstairs and found JH with his face down in his dinner. She yelled at him and he sat up, with food stuck to his forehead. She said she told him to go to bed, and he went upstairs to the bedroom.

JH disagreed, saying they were together for the meal and wine before she retired for the evening, and he went down to the lounge for an additional drink. The hotel receipt showed an additional payment made in the lounge that day.

He denied there was food stuck to his face, or that CM told him to go to bed.

“I do not find it relevant as to whether (JH) had food stuck on his face or not, but I do find that the testimony of both parties is in agreement that (JH) had consumed a lot of alcohol throughout the evening,” the tribunal said. “(CM) stated that no Fairmont staff were present in the room, but (JH) took the position that members of the staff were present the entire evening, serving dinner and wine.”

No Fairmont staff were called as witnesses. A hotel invoice showed the elaborate meal provided in the suite cost $5,333.20.

The next day, CM said she tried to discuss the incident with JH — but he denied touching her breast or hip. They checked out of the hotel after one night, even though they had planned to stay two. They found separate accommodation in cheaper hotels the following night. CM testified that she wanted to go home, but JH refused to send her home.

JH, though, said CM never told him she wanted to go home and did not accuse him of the touching incident until they were almost home.

Audit did not go well

The point of the business trip, the audit, did not go well. CM said she didn’t sleep well because she was stressed and upset by the touching. In addition to her mental state, there was also some technological issues with equipment provided by the client for the audit.

JH agreed the audit did not go well, but put the blame on CM’s lack of ability. JH ordered her to stop the audit.

The pair did not return directly to Alberta, but drove through Washington, Idaho and Montana on their way home. JH wanted to pick up some cases of wine and introduce CM to an executive in the U.S. branch of the company. They returned home on June 17, 2015.

The termination

CM had scheduled time off for a family reunion. When she returned to work on July 6, she was told by the owner’s brother, SH, that she had been terminated. SH was not known to be an employee of the company at the time.

CM sent a note to JH asking why she had been fired. He wrote back, “I wish to exercise the 30 days’ notice clause in your contract.”

Two days later, CM received an email from a lawyer for JH alleging that she had been terminated for cause. The cause included her false accusations against the owner, her poor performance and the theft of $9,360 in wrongful vacation payout.

In an earlier Employment Standards Dispute, the umpire found a number of facts to be relevant in this case. First, JH had cause to terminate her employment because she went into the payroll system, changed her accumulated days of vacation, and then authorized the payout of what she believed she was entitled to. She did this without approval or informing JH.

The umpire also found she abused her authorization for the use of JH’s electronic signature and she did not have the skills necessary to look after audits.

Following the termination, CM filed a complaint with Vancouver police alleging she had been assaulted by JH.

The ruling

The tribunal noted that JH showed a lack of respect for women in the workplace when testifying.

“He referred to the complainant as “McCharles” and not “Ms. McCharles” as instructed, and he repeatedly referred to the women who worked at the respondent with the infantilizing term “gals,” suggesting that there was a negative work environment for women (at his company),” the tribunal said.

The only other witness who testified, beyond CM and JH, was on of CM’s colleagues. He filed a corroborating email with Vancouver police after she filed her complaint. In the email to police, he said JH had: “boasted to me about his “make out” session with “super tits” his nick name for [the complainant], where he described fondeling (sic) her breasts and bitched that she did not want to engage with him and was upset as he said he had paid a lot of money for the suite and an expensive dinner.”

But when called to testify, the colleague recanted what he had written. He said he lied because he was mad at JH, who had not paid him what he was owed. He said CM wrote the complaint for him to send to police.

“The colleague was openly hostile during the proceedings, was argumentative and offered no explanation or remorse for allegedly having lied to the police,” the tribunal said. “I do not find it credible that, as he suggested, he willingly lied to police, then later had a sudden change of heart and came to the hearing to clear the air and tell the truth. The colleague’s explanation was not credible.”

Post-assault behaviour means nothing: Court of Appeal

JH said the fact CM continued with him on the trip, into the U.S., and that she had further drinks with him in other hotel rooms made her complaint not credible.

The tribunal noted that the Court of Appeal of Alberta has denounced analysis into the complexities of human behavior following incidents of assault. “The more important question is what, if anything can evidence of a lack of avoidant behaviour by a complainant tell a trier of fact about a sexual assault allegation?  The answer is simple – nothing,” it said.

What wasn’t in question was the fact that CM, an employee who reported to JH — who was in a position of power over her — was asked to sleep in an open-concept den without door or lock, the tribunal said. It ruled that, on the balance of probabilities, JH touched CM’s breast and hip as alleged. And he repeatedly used demeaning language to refer to CM in the workplace.

“The demeaning and cavalier way that (JH) treated this complainant is worthy of strong sanction. Women should not be forced to make a choice between career advancement and a safe workplace,” the tribunal said.

“Company owners especially owe a duty to their staff to create and maintain a safe work environment. The poisoned work environment where the complainant was exposed to demeaning names, the Owner’s gossip about wanting to sleep with her, and then finally being attacked physically is appalling. No person should have to work in these conditions.”

It also ruled her termination was due, at least in part, to a protected ground — that being her gender and the sexual harassment.

The penalty

The tribunal said that touching of a woman’s breasts by her boss is “far along the seriousness scale of possible sexual harassment.”

It awarded $50,000 in general damages for injury to dignity.

Then it turned to the issue of lost income. Damages were sought for loss of income from the date of termination until Dec. 31, 2019 — more than four years. JH noted that CM, as decided by the umpire in the Employment Standards Dispute, breached her employment obligations.

In these circumstances, with a short-term employee who did not perform an audit well, 30 days was more appropriate, he argued. The tribunal agreed.

Thirty days pay was calculated as $13,150.68 — based on her daily salary ($160,000 divided by 365) less deductions required by law.

Finally, the tribunal ordered any employees at the respondent wtih supervisory capacity, including but not limited to the owner and his brother, to complete a human rights training course that includes sexual harassment within 120 days of the ruling.

For more information see McCharles v Jaco Line Contractors Ltd., 2022 AHRC 115 (CanLII)