A victory for foreign workers
Harassment ruling sets new bar
After the Canadian government launched the Temporary Foreign Worker Program, a 2015 Ministry of Labour compliance blitz in Ontario confirmed that more than 60 per cent of employers that were inspected were not providing workers with even their most basic employment standard entitlements. More than $ 361,000 in unpaid wages, overtime, and vacation pay were recovered from employers for marginalized employees in the blitz.
New, young and vulnerable employees are at greater risk of not receiving their basic rights under employment legislation. The Ministry of Labour is not the only body sanctioning employers that take advantage of these vulnerable employees. In 2015, the Ontario Human Rights Tribunal rocked the province’s legal community by awarding two temporary foreign workers the largest damages payment in its history.
In the decision of O. P.T. and M.P.T. vs. Presteve Foods Ltd., the Ontario Human Rights Tribunal awarded $ 150,000 and $ 50,000, respectively, to each of the two junior employees, based on its finding they were subjected to sexual solicitations and advances. The $150,000 damage award is a high watermark for the Human Rights Tribunal.
The sisters, temporary foreign workers who came from Mexico to work for Presteve, a fish processing plant in Wheatley, Ont., alleged they were subjected t o unwanted sexual solicitation and advances by the company owner, Jose Pratas, including sexual assault, touching and a sexually poisoned work environment.
O.P.T.’s allegations against Pratas included his profession of love and an offer of financial assistance for her children and housing for her in Mexico, which she did not accept.
On one occasion he told her to pull her pants down, touched her bare legs, forcibly hugged and kissed her, and had intercourse with her on three occasions. He even called her in Mexcio, advising her he would be there on business and that he wanted to visit her and her children at her home and again told her he loved her.
On another occasion, she alleged he insisted on picking her up when she was with a friend, yelled at her for not answering her phone and demanded she turn it over to him, and tried to grab it from between her legs; when she put it under the car seat he took her purse and emptied it on the side of the road and forcibly pulled her from the car by her wrists.
M. P. T. al l eged Pratas slapped her on the buttocks, touched her breasts over her clothes and sexually propositioned her.
Both employees maintained at the hearing they did not invite or want to do any of these things but were afraid Pratas would make good on his threat to send them back to Mexico.
Pratas sent M. P.T. back to Mexico in early April 2008 when she refused to “apologize to him for being disrespectful.”
The Tribunal found Pratas engaged in a persistent and ongoing pattern of sexual solicitations and advances toward O.P.T. during her employment.
It also found he expressly wielded his authority by threatening to send her back to Mexico if she refused his sexual advances. Similar findings were made with respect to his actions toward M.P.T.
Although Pratas didn’t appear to be acting within the scope of his role when engaging in this pattern of conduct, Presteve was still deemed to be liable for his actions as his misconduct was in some way related or associated with his role.
To minimize similar liability and public embarrassment, employers should keep in mind the following:
❚ Stop office romances in their tracks. It is a virtual certainty that an employeremployee sexual relationship will be seen as a violation of the Human Rights Code. Employees in a subordinate position may feel that the relationship must continue to in order to maintain job security.
❚ Don’t fall victim to digital debris. In a world of email, texting and snap chatting, i nappropriate or sexual communication over electronic devices can be damning for an employer at the tribunal.
❚ Take free human rights training. Book a boardroom, order lunch in and update training for all management on a quarterly basis. Great content is available and much of it is free.
Howard Levitt is senior partner of Levitt & Grosman LLP, employment and labour lawyers. He practises employment law in eight provinces. Employment Law Hour with Howard Levitt airs Sundays at 1 p. m. on NEWSTALK 1010 in Toronto. hlevitt@ levittgrosman. com Twitter. com/ HowardLevittLaw
MISCONDUCT WAS IN SOME WAY RELATED ... WITH HIS ROLE.