A former server at Smitty’s Family Restaurant in Charlottetown has been awarded $15,000 after she was exposed to ongoing and continuous sexual harassment in her workplace.
The server, KM, worked for the restaurant for about one year, from April 2017 to April 9, 2018. She claimed that her termination resulted from the complaints she made about the harassment.
The restaurant, though, countered that it knew nothing about the harassment and that KM was laid off due to a lack of work.
Background
KM said the inappropriate behaviour began in October 2017 and included harassment from multiple male employees and a regular male customer.
Two workers — an assistant manager/cook and a kitchen manager/cook — were named as the primary perpetrators. The nature of the harassment included sexual comments, sexual joking, use of derogatory language, and inappropriate touching.
According to KM, the restaurant’s management failed to address the issue adequately. She claimed that she reported the incidents multiple times to the three owner-operators of Smitty’s. She further alleged that management was unresponsive, not just to her reports, but also to incidents involving other female employees.
After enduring months of alleged harassment, KM took a medical leave from Jan. 5, 2018, to April 9, 2018, due to the adverse effects the harassment had on her mental and physical well-being. Despite being medically cleared to return to work on April 9, 2018, she was informed that her employment at Smitty’s had been terminated on the same day.
Smitty’s, for its part, denied there was any harassment — and alleged that KM never spoke to any of the owners about the behaviour. The termination was a result of a shortage of work and nothing more, it said.
Examples of behaviour
The Prince Edward Island Human Rights Panel reviewed some of the specific allegations. For example, KM testified there was a daily, constant talk which included sexual comments and innuendo. On at least three occasions, a co-worker rolled a piece of bacon, put it in his mouth and let it drop and said, “I’m ready for you.”
And on one or more occasions he put a sausage near his pants with his zipper down and said, “Here. Jump on.”
There were about six incidents of a worker following her into a walk-in fridge or freezer while saying inappropriate things, including physically grabbing her. More examples are spelled out specifically in the ruling . (See below.)
The example of inappropriate customer behaviour included a man who would frequently ask for hugs from servers — and staff felt pressured to comply and spend time socializing with him when it was not busy, said KM.
Notably, all of the witnesses who testified said that there was no sexual harassment policy or training at the restaurant.
The panel’s ruling
The panel concluded KM had been harassed in the workplace.
“This took the form of having to work in an environment which included unwelcome conduct of a sexual nature and included sexual touching on more than one occasion,” it said. “This work environment led, at least in part, to ongoing mental health issues for which she required a medical leave, which is a job-related consequence for her.”
But it said there was no proof that KM was fired because of the harassment complaints. While the timing was “suspicious,” there was no evidence other than her belief that it was the reason for her termination.
The remedy
The panel said the adverse impacts of the sexual harassment on KM were “profound.” It noted that while she may have had past trauma or difficulties unrelated to Smitty’s, that did not take the employer off the hook.
“Counsel for the (employer) argued that not everything that happened to the Complainant was “Smitty’s fault”. While that may be true in terms of what happened to her in her youth, they are responsible in relation to what happened to her at Smitty’s, including how it may have triggered issues from her youth,” it said.
“The impact of sexual harassment can vary from person to person and when assessing damages, it is necessary to look at how it impacted this person.”
It ordered the following:
- $15,000 in general damages to KM for mental anguish, humiliation, affront to dignity and/or emotional injury.
- An order for Smitty’s to provide the Human Rights Commission with a copy of its harassment policy and accept direction, if any, from the commission as to recommended content changes.
- Smitty’s is to provide sexual harassment training, at its own cost, within four months. In addition, all managers and assistant managers are required to take the training on an annual basis for three consecutive years.
For more information, see Milligan v Maczak Holdings Ltd, 2023 CanLII 90442 (PE HRC)
