A woman who was only on the job for eight days has been awarded minimal damages after she was called a “bitch” by a co-worker at Kuehne + Nagel Inc. The Tribunal found that the derogatory term constituted discrimination based on sex, a violation of the Ontario Human Rights Code.
S.G. filed a complaint alleging that she had been subjected to reprisal and discrimination in the workplace, including sexual harassment. She sought $5 million in damages. The allegations stemmed from two incidents involving her co-worker, T.D., during the short time she worked as a warehouseperson at the company in November 2019.
The first incident occurred on November 17, 2019, when T.D., also a warehouseperson, approached S.G. while both were operating lift trucks. S.G. testified that she was carrying a heavy load and asked T.D. to stop his truck. He responded by asking if she would report him for not using his horns. When she confirmed that she would, T.D. drove off, allegedly calling her a “bitch.”
The Tribunal found that this comment constituted discrimination based on sex. “Bitch is a derogatory term used to demean and disparage women. The applicant is a woman. It follows, and I find, that (T.D.) calling the applicant a ‘bitch’ constituted discrimination based on sex, contrary to the Code,” wrote Adjudicator Karen Dawson in her decision.
S.G. reported the incident to her supervisors on the same day, and both she and T.D. were asked to submit written statements. Her statement included the reference to the “bitch” comment, while T.D.’s did not. The company viewed the matter as a health and safety issue, and no further action was taken at the time.
The Tribunal ruled that Kuehne + Nagel Inc. was vicariously liable for T.D.’s conduct under the Code. “The Code requires an employer to provide its employees with a discrimination-free work environment. This obligation includes the duty to reasonably investigate a discrimination complaint,” Dawson wrote. The ruling noted that while the company did investigate the incident when ordered to do so by the Ministry of Labour, this occurred after S.G. had been terminated, failing to address the discriminatory environment during her employment.
The ‘hot mama’ incident
The second incident allegedly occurred two days later, on November 19, 2019, when S.G. claimed T.D. sang “she’s so dangerous” while looking at her and called her a “hot mama.” She did not report this incident at the time, and it only came to light when she filed her application with the Tribunal. The Tribunal found it “more likely than not” that the second incident did not occur, given S.G.’s prompt reporting of the first incident but delay in reporting the second.
S.G. also argued that her termination was a reprisal for asserting her rights under the Code, but the Tribunal found no evidence to support this claim. The testimony of the respondent who decided to terminate S.G. was accepted by the Tribunal. That person stated that she was unaware of S.G.’s discrimination claims at the time of her termination and did not interpret her written complaint as a harassment complaint.
“(This) testimony was not disputed on this point, and as such I find she lacked the requisite intent to reprise. The applicant therefore failed to establish that her termination constituted reprisal under the Code,” Dawson wrote.
Remedy
In terms of remedies, S.G. sought $5 million in damages and other relief. However, the Tribunal found that her claim for general damages was unsupported by evidence, such as medical notes or proof of appointments with health professionals. The respondents argued that any damages awarded should be minimal, noting that the incidents were of a less serious nature and did not involve physical touching.
Dawson agreed with the respondents, awarding her $300 in general damages for injury to her dignity, feelings, and self-respect. “The discrimination in this case was of a less serious nature, and a general damages award on the low end of the spectrum is appropriate,” Dawson concluded. The organizational respondent and T.D. were ordered to pay this amount jointly and severally.
For more information, see Geddes v. Kuehne + Nagel Inc., 2024 HRTO 1127 (CanLII).
