Vigilance and Discernment: Those Responsible for Receiving Reports Must Be trained and Competent

In the recent decision Kouyate v. Prana Biovégétaliens Inc.^[1], Administrative Judge Véronique Emond concluded that the complainant was the victim of psychological harassment, characterized by repeated acts of sexual violence under threat from her supervisor over a period of several months. She also found that the employer’s claims regarding the complainant’s credibility were based on myths and stereotypes associated with victims of sexual violence. Finally, the arbitrator ruled that the employer had failed in its obligation to prevent and stop the harassment. Simply disseminating a policy was not enough: the employer should have educated its supervisory staff and taken proactive action, especially in a context of authority.

This decision highlights the importance for employers to designate and train competent individuals to receive and handle informal reports and complaints of harassment. This is now part of their obligations under the Labor Standards Act (hereinafter, “LSA”)^[2].

THE FACTS

The Complainant, Archatou Kouyate, began working at Prana Biovégétaliens Inc. (hereinafter the “Employer”) through an employment agency in October 2019. At the time of the events, Ms. Kouyate had recently arrived in Canada, where she immigrated alone and held a temporary work permit. She was then hired as a permanent employee in July 2020 and dismissed in April 2022.

Following her dismissal, she filed a harassment complaint under the LNT. She claimed to have been the victim of sexual violence by her supervisor from the time she started working in October 2019 until she was hired as a permanent employee in July 2020.

The facts established by the Court can be summarized as follows: between October 2019 and July 2020, Ms. Kouyate’s night supervisor forces her to have sexual relations with him at the workplace. During this period, the supervisor demands sexual favors from Ms. Kouyate two to three times a week. He picks her up at her workstation or in the break room or sends her text messages asking her to join him. Ms. Kouyate claims to have given in to these demands for fear of losing her job.

From the very beginning, the supervisor offers to drive Ms. Kouyate home, which she eventually accepts due to his insistence. During the drive, he places his hand on her thigh, and upon arrival, he suggests coming up to her place for tea, but she declines. She senses his displeasure, and he asks for “a kiss,” which she refuses.

In the days that follow, he asks her to kiss him at work. When she refuses, his attitude changes: he becomes authoritarian and tells her that if he gets what he wants, he will then leave her alone. The supervisor goes so far as to threaten her employment, grabs her by the arm, and takes her to an isolated location where he kisses her forcibly.

That same week, he repeats the scheme, this time by taking her into a closed office where he forces her to perform oral sex. Subsequently, he demands full sexual intercourse, which Ms. Kouyate refuses, invoking her religious beliefs. When he asks what he can do to make her agree, she replies that only marriage could change her mind. He then implements various strategies to satisfy his sexual needs without penetration, even going so far as to declare that he wants to marry her.

In July 2020, Ms. Kouyate was hired directly by the employer as a sanitation attendant on the night shift, under the responsibility of the aforementioned supervisor. Ms. Kouyate was invited by her supervisor to join him in his office, an invitation she refused, considering that she was now a permanent employee. Furious at her refusal, the supervisor then ceased his advances, putting an end to any sexual contact between them.

In the summer of 2021, a Human Resources advisor contacted Ms. Kouyate in order to clarify an ambiguous situation with the supervisor regarding vacation leave. Ms. Kouyate told her that there were certain things she could not disclose and asked her to tell the supervisor that personal matters must not interfere with work. The advisor insisted on obtaining details, but Ms. Kouyate refused to say more, as she feared losing her job. The advisor then turned to the supervisor, who stated that he did not understand what Ms. Kouyate was referring to. The advisor did not pursue the matter further and ended her intervention.

CONCLUSIONS REGARDING THE PRESENCE OF SEXUAL HARASSMENT/SEXUAL VIOLENCE

The Tribunal finds that Ms. Kouyate clearly and explicitly refused any advances or intimacy with her supervisor, emphasizing that the supervisor was in an “unequal power relationship” with Ms. Kouyate and that he took advantage of his position of authority to coerce her into having sexual contact with him at work. Her consent was therefore vitiated by the relationship of authority and the threats made by her supervisor.

In its credibility analysis, the Tribunal emphasizes that Ms. Kouyate appeared alone and did not have the support of a prosecutor in the context of testimony that was “extremely painful and difficult to give.” The Tribunal also takes into consideration that the events took place more than four years ago and that the discrepancies in her testimony are minor. It considers that she recounted the events in a consistent and coherent manner:

[76] […] Considering the large number of traumatic events she experienced, two to three times a week for several months, her testimony cannot be discredited on the basis of details of this nature.

The Tribunal also rejects the Employer’s claim that Ms. Kouyate’s attitude and behaviour after the events are inconsistent with the facts she reports. It emphasizes that these are myths and stereotypes and that “using such prejudices to dismiss the version of an alleged victim and assess her credibility is a significant error.” The Tribunal also emphasizes:

[86] The Tribunal deplores the fact that an alleged victim is being criticized for not looking for a new job. In addition to holding her responsible for the actions of her abuser, who was in a position of authority over her, she is being asked to bear the burden of leaving her workplace. The Tribunal cannot agree with such a theory. Employers have a responsibility to provide a workplace free of violence, and it is not up to victims to flee and change jobs if they do not have the courage to report the situation.

[Our translation and emphasis]

CONCLUSIONS REGARDING THE EMPLOYER’S OBLIGATIONS

The Tribunal concludes that the Employer failed to fulfill its duty of care and did not take adequate action upon being alerted of a potential situation. In fact, the Tribunal maintains that supervisory staff were not sufficiently aware of their obligations toward employees with regard to psychological and sexual harassment. It states:

[178] In the Tribunal’s opinion, during the summer of 2021, the human resources director and the counsellor turned a blind eye and failed to intervene appropriately. Ms. Kouyate informed the counsellor that there were things she could not disclose and referred to a personal situation with the night supervisor. They quickly accepted the supervisor’s version, who stated he did not know what she was referring to. Ms. Kouyate raised an unusual situation but never received any further communication from management regarding her comments.

[179] Both of them stated before the Tribunal that they were not aware of the actions now raised by Ms. Kouyate.

[180] This version appears irreconcilable with the documentary evidence where, at the very least, they presume or infer the existence of a particular relationship between them. Yet, the night supervisor informs them that he does not know what it concerns. This simple discrepancy ought to have alerted them. However, they hasten to close the file without further intervention.

[Our translation and emphasis]

KEY TAKEAWAYS

This decision sends a clear message regarding the employer’s obligation to designate and train competent individuals to receive and handle informal reports and complaints of harassment. Furthermore, simply disseminating a harassment prevention policy is not enough: those responsible must have specific knowledge that enables them to be vigilant and respond appropriately, particularly when there is a relationship of authority or when they are made aware of worrying signs.

This case also serves as a reminder that the credibility of a complainant cannot be assessed on the basis of stereotypes and prejudices associated with victims of sexual violence. Organizations must recognize these biases and put in place concrete mechanisms to limit their effects.

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[1] 2025 QCTAT 2186.

[2] Act respecting labour standards, CQLR c N-1.1, section 81.19, para. 2.