A golf course in British Columbia has been ordered to pay $27,500 in damages to a former unionized employee for workplace harassment and intimidation by an arbitrator.
The award, from arbitrator James E. Dorsey, K.C., arises from Nico Wynd Golf Club’s failure to provide a harassment-free work environment and to conduct a timely and adequate investigation into an incident in which the employee — A.A. — was subjected to improper conduct by individuals in positions of authority at the club.
While the union had sought $40,000 in damages and the employer argued for $10,000, the arbitrator settled on an amount more than double the employer’s proposal.
Physical altercation at workplace
The dispute centred on a contravention of Article 11:11 of the collective agreement between Service Employees International Union, Local 2, Branch 244 and Strata Corporation NW1378 (operators of Nico Wynd Golf Club).
The article states: “The Employer recognizes the right of Employees to work in an environment free from harassment. Harassment shall be defined as any unwelcome behaviour, conduct or communication, directed at an Employee that is offensive to that Employee.”
According to the decision, the employer’s contravention was linked to an incident in which A.A. intervened in a physical altercation between owners on the property, and was then subjected to harassment and intimidation on the same day.
The arbitrator had previously found that “the employer harassed and intimidated (A.A.) on August 24, 2023,” and that it “failed to conduct a timely investigation to learn what was necessary to provide a safe workplace after an incident of physical violence.” In the subsequent phase of the proceedings, both sides made written submissions on the appropriate quantum of damages. The union argued for a higher figure, noting that these decisions should be based on a “fact-sensitive analysis” and take into account the severity and impact of harassment on the victim’s dignity.
Five interrelated factors
In its submissions, the union emphasized that awarding damages for injury to dignity requires a “highly contextual and fact-specific” approach. It argued that there is no formula to calculate such damages, but pointed to a range of $10,000 to $40,000 found in British Columbia Human Rights Tribunal awards for injury to dignity, feelings and self-respect.
Quoting past reasoning by Arbitrator Ponak, the union listed five interrelated factors often considered by arbitrators: severity of the incident, whether it was a single event or multiple events, duration, consequences to the victim, and the employer’s response. “The nature of the conduct was severe and repetitive, rife with an imbalance of power,” the union said, according to the written decision.
Failure to investigate
The union also submitted that the employer’s failure to reasonably investigate the allegations against the harassing individuals should increase the amount of damages. It pointed to criteria set out by the Ontario Human Rights Tribunal in another case, which include whether the employer treated a complaint seriously, acted promptly and sensitively, and communicated its findings.
In the union’s view, the employer in this case failed on all counts, thus heightening the impact on A.A. The union noted that “distress caused by employer failure to investigate can undermine an employee’s dignity and self-esteem, negatively impact health and general wellbeing.”
Employer’s position
In contrast, the employer argued that the subjective impact of harassment on A.A. should not be considered in determining the amount of damages. The employer contended that only the nature of the conduct itself should guide the award, stating: “If the effects are considered, the evidence of the impact on [A.A.] would require more in-depth evidence than was presented.”
The employer warned that placing emphasis on consequences to the victim could encourage complainants to exaggerate harm. It claimed its investigation, while not “robust,” had found no harassment, a conclusion also reached by independent investigators the employer engaged. Although these findings were incorrect, the employer argued that its attempts at investigation should not influence the damages.
In support of a low-end award, the employer cited cases where damages for harassment were far less than the $40,000 sought by the union. It argued that what occurred on August 24, 2023, was a “one-off” incident at the lower end of the seriousness scale, and thus merited an award of no more than $10,000.
Employer’s narrow approach rejected
Arbitrator Dorsey rejected the employer’s narrow approach, noting that the impact of harassment is a well-accepted consideration in assessing damages. While the arbitrator acknowledged that these circumstances did not involve prohibited grounds of discrimination under human rights legislation, the behaviour still violated the collective agreement.
The decision noted that the aftermath of the initial harassment was prolonged and that the employer attempted “to cast the harasser as the victim,” downplaying A.A.’s concerns and portraying her as exaggerating the event’s impact. The employer’s stance, the arbitrator found, “left its employee unsupported, which exacerbated the impact.”
In arriving at the $27,500 figure, the arbitrator considered factors from both human rights jurisprudence and arbitral principles. Although the harassment and intimidation were focused around a single date, the employer’s continued denial of responsibility and its failure to seriously address what happened extended the harmful effects on A.A. The arbitrator wrote that “the employer’s diminution of the impact and denial of responsibility persisted for a year.” This sustained period of inadequate response distinguished the matter from the employer’s preferred comparisons and justified a higher sum than the employer’s proposal.
The union’s reference to broader case law from human rights tribunals and arbitrations also influenced the assessment. The award is not tied to any specific precedent, nor did the arbitrator call it such. Instead, Dorsey noted that assessing compensation for non-monetary loss is guided by principles adopted from human rights decision-making. The final figure falls within the range cited by the union while reflecting the particular facts and context of this case—namely, a serious breach of A.A.’s right to a harassment-free workplace, compounded by an inadequate investigative response.
Arbitrator Dorsey concluded: “I find in all the circumstances and the factors considered by arbitrators informed by human rights tribunal decisions that an appropriate amount to compensate [A.A.] … is $27,500.” This ordered payment stands as a substantial award for contravention of the collective agreement’s harassment provision and underscores the importance for employers to take complaints seriously, investigate promptly and thoroughly, and refrain from minimizing or dismissing an employee’s experience of workplace harassment.
For more information, see Service Employees International Union, Local 2, Branch 244 v Strata Corporation Nw1378 (Nico Wynd Golf Club), 2024 CanLII 124396 (BC LA).
