By Caroline Barghout
Awarding $75,000 to a former employee harassed for being gay — for injury to dignity, feelings and self-respect under the Manitoba Human Rights Code — is “unjustifiable,” Manitoba Justice says.
Earlier this month, the province filed an application in the Manitoba Court of Queen’s Bench asking a judge to reduce the amount awarded to the former employee by the Manitoba Human Rights Commission in December or, alternately, to refer it back to the adjudicator to reconsider compensation altogether.
There is a publication ban on the former employee’s identity, so we are calling him T.M.
Last year T.M. filed a complaint with the Commission alleging he endured ongoing harassment because of his sexual orientation while working as a corrections officer at the Manitoba Youth Centre (MYC), including homophobic slurs and sexually explicit comments.
After a three-week hearing, Adjudicator Sherri Walsh found the province failed to provide a safe, respectful workplace for the former corrections officer, and that Manitoba Justice was repeatedly made aware of the harassment and did nothing to stop it.
“Being harassed on the basis of his sexual orientation was so pervasive at MYC that it became a term or condition of T.M.’s employment,” said Walsh in a 36-page written decision released December 19, 2019.
Walsh awarded T.M. $75,000 compensation for damages, and ordered the province to conduct training on harassment and designate a respectful workplace advisor for staff at the Winnipeg youth jail.
Error of law
Manitoba Justice says the adjudicator made an error of law “by awarding an unjustifiable quantum of damages for injury to dignity, feelings and self-respect,” according to the notice of application filed by the province in court January 17.
It said Walsh made a mistake by considering and including the impact of the province’s actions in dealing with T.M.’s complaint and its effect on his “income earning capacity for the purpose of assessing damages” under the Human Rights Code “contrary to her earlier finding that the applicant’s contravention had no such impact.”
“They just don’t care,” said T.M. in a phone interview. “It’s just it’s so hurtful. And it’s like someone just sticking a knife in your back”.
I’m trying to move forward. I’m trying to start my life over again. And it’s just like they just keep pulling me under the water.”– T.M.
T.M. said at first he tolerated the jokes at work, then asked his coworkers to stop. When that didn’t happen he filed a formal complaint with Manitoba Justice in 2013.
“All I asked for was to be moved to another government position where I would not have to put up with the harassment, nothing more,” T.M. said.
He says Manitoba Justice would not accommodate that request.
Manitoba Justice says the province already has mandatory training in place for all provincial employees, which includes harassment prevention, and inclusion and diversity.
“Respectful workplace advisors were also put in place last year to help support the roll-out of the enhanced respectful workplace and harassment prevention policy and to provide expertise and guidance in dealing with complex concerns or complaints,” a spokesperson said in an email.
“The department continues to review the December 2019 order to determine if additional practices can be put in place to improve the workplace environment and better support our staff,” said the spokesperson.
T.M. began working at MYC as a counsellor in 2002, and eventually became a corrections officer. He planned to stay at the youth jail until retirement, but instead resigned in 2017.
“You go to work and you just hope that, you know, whatever pearls of wisdom you say or whatever might just tweak in one of the kids’ heads down the road and he might change or she might change her life for the better,” T.M. said. “I felt that that [would] be a really positive thing to be part of and something I could be really proud of.“
T.M. says he was forced to deal with this ordeal for years, and in 2015 he attempted suicide.
“I had worked so hard all my life to get where I was. I thought, you know, I kind of finally made it into a career I really wanted. And I just, I lost everything,” T.M. said.
He hoped Walsh’s decision would be the end of it.
“I’m trying to move forward. I’m trying to start my life over again. And it’s just like they just keep pulling me under the water,” T.M. said. “The payment would have been a final sort of, you know, we’re done. We’re settled. Thank you. Goodbye. And I can move on with my life”.
T.M. doesn’t understand why the province has fought so hard against him for so many years and wonders what it has cost taxpayers so far.
“That waste of tax money is on them, not me,” T.M. said.
Costs can’t be disclosed
When asked how much this case has cost taxpayers, a department spokesperson said “information about costs is subject to solicitor-client privilege.”
“We are limited in what we can say prior to the province’s position being established in court, but as outlined in the notice of application, there are concerns the amount of the award sets a precedent,” said Justice Minister Cliff Cullen in an emailed statement.
First published by CBC News on 01/29/2020.