For Zbigniew Augustynowicz, the Garden of Eden simply had too many forbidden fruits. As the owner of Metro Aluminum Products, an aluminum manufacturer in Surrey, B.C., Augustynowicz confused a failed office romance with sexual harassment. When he did, it became the recipe for a workplace disaster.
Augustynowicz met Lisa McIntosh when she started working for his company as a driver. Two weeks later, he asked her out for a drink after work. McIntosh agreed, and they chatted about work and family. Augustynowicz claimed he was no longer married. Soon they started dating and exchanging text messages at work.
Having later learned that Augustynowicz was still married, McIntosh tried to end the relationship. Augustynowicz did not take this news well. He continued to send her provocative text messages, repeatedly calling her a “bitch” and propositioning her for sex.
McIntosh told Augustynowicz to stop texting her and tried to ignore him. However, Augustynowicz was persistent and his texts became progressively offensive. When McIntosh refused his entreaties, he asked if he could date her daughter instead and enquired if she had “any horny girlfriends.” After McIntosh declined to rekindle the relationship, Augustynowicz texted her saying “the hell with u, I tried.” Finally, McIntosh threatened to contact the police.
On the verge of breakdown, McIntosh went to a doctor and was granted eight-12 weeks off work for stress. When she gave her doctor’s note to the shop manager, he said he had no choice but to replace her and then “assumed” she quit. But McIntosh had not quit, so she complained to the Human Rights Tribunal.
At a recent trial, Augustynowicz attempted to justify his actions by arguing that McIntosh was both a “willing participant” and a “workplace flirt.” However, these arguments were swiftly dismissed by the tribunal, which found that McIntosh was sexually harassed when she insisted the texts come to an end. The tribunal ordered Metro and Augustynowicz to pay significant damages for lost wages and mental distress.
It comes as no surprise that Metro and Augustynowicz’s arguments were easily vanquished, especially at a left-leaning human rights tribunal. The argument that she was a “willing participant” and a “workplace flirt” represent excuses rather than valid legal defences, as the mere fact that an employee had a prior relationship with a boss will never be seen as a licence for unwelcome advances.
Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com.
