Author Dylan Hill

Author Dylan Hill

Ontario Human Rights Award Reaches $200K

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The laws and policies dealing with harassment and in particular sexual harassment have been in place for decades in Canada, yet the problem persists in all too many workplaces. I have been researching cases and awards for some time and this is the highest award I have seen out of Human Rights. In my view, awards of $10,000.00 or less (what I typically see) are not sufficiently preventative to remedy this horrendous behaviour.

This case involves the hiring of temporary foreign workers to a workplace in Canada at a processing plant. Two complainants came to Canada from Mexico and were subjected to sexual harassment and assault. The complainants detailed numerous instances of unwanted physical contact and sexual comments, all with the threat from the respondent that if they did not comply, he would send them back to Mexico.

Specifically, the respondent in this case was the owner of the processing plant and he began taking one of the complainants to dinner, even though she did not want to go. He insisted and became angry when she tried to refuse and even resorted to threatening her with being sent home. His practice was to house a number of the temporary foreign workers in a house he owned, several to a room, with strict rules like a 10 pm curfew. He also took their passports and all visa related paperwork when they arrived and made them sign papers to authorize such (in English which they did not understand). During one of these dinner incidents, the respondent put his hand on the complainant’s leg and moved it up to her vagina while driving. His behaviours escalated to sexual assault and assault on numerous occasions. The complainant testified that she felt she had no choice but to comply due to the respondent’s constant threats.

The second complainant detailed similar incidents with the respondent, including that he kept asking for sex and telling her that sex with him would cure her physical symptoms when he was driving her to the doctor. The respondent insisted that he was the only person who could drive the workers to the doctor and he had the paperwork they required to access health care in Canada. The respondent sent the second complainant home after threatening her during an incident when he ordered her not to leave the house and she did. She refused to apologize to him and he sent her home.

The first complainant returned to Mexico after a series of assaults. The respondent continued to attempt contact with her by telephone, told her that he loved her and that he wanted to come visit her and her children in Mexico.

The two complainants spoke to the local police and reported the assaults and charges were laid against the respondent. He pled guilty to a lesser offence and never admitted any sexual wrongdoing, rather pled to assault charges.

The two claimants filed an application with the Human Rights Tribunal of Ontario along with dozens of others. The other complainants resolved their complaints before the hearing and the two complainants were the only remaining actions pending.

The Arbitrator considered a significant amount of information including the evidence submitted in other legal venues and the testimony of those involved. The respondent did not provide any evidence. After a lengthy review of the evidence and the case law, the Arbitrator awarded the first complainant $150,000.00 plus interest and the second complainant $50,000.00 plus interest for injury to their dignity, feelings and self-respect. This represents a significant increase in award amount that I have become aware of and, I think, signals a more punitive approach to the horrendous behaviours exhibited by some.

A Nexus

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What is it and why do we need to establish one?

The case research this month that caught my eye is a case out of British Columbia, a Province we are excited to come visit once again in late February for a Public Workshop of Investigation Techniques. Hope to see you there! This case contains one simple argument or point to consider; is there a nexus established? In the past few years I have encountered quite a few cases like this with many professional and sophisticated employees and employers not quite understanding the point. While complex, the decision is simple and sometimes you need to focus on the bottom line when weighing evidence. I hope you enjoy the case and I look forward to any comments or questions you may have!

Ms Campbell complains that she was discriminated against on the basis of physical disability when her employment was terminated. She names three individual respondents, who were all supervisory personnel. The Employer denied the allegations and sought dismissal of the complaint, and an Arbitration was held.

The essence of Ms Campbell’s complaint stems from medical leaves associated with a knee injury she sustained. She alleges that there was a “temporal connection” with her being off work and false allegations of her poor performance.

The respondents said that Ms Campbell’s employment relationship was difficult, characterized by insubordination and failure to fulfill expectations. Investigations of Ms Campbell’s performance were often delayed until she returned to work after medically-related leave. This seemed to give a temporal connection with her return to work and the employer’s investigation of supposed wrongdoing by Ms Campbell.

The culminating incident in the employee relationship revolved around a series of meetings that Ms Campbell failed to attend, with or without notice and with or without medical support for her lack of attendance. She would often fail to show up or fail to support absences with medical documentation. Her particular issue was a knee injury.

Ms Campbell was terminated and the reasons given by the employer was exclusively based upon, and rooted in, her longstanding performance and behavioural issues and had nothing to do with any physical disability, including treatment or absences associated with her medical concerns.

Ms Campbell grieved the termination but the Union chose not to proceed with the grievance. The Union determined that an arbitrator would likely find that the employer had just cause to terminate.

The respondents say that throughout her employment, whenever Ms Campbell was faced with direction or critical feedback with which she disagreed, she would file unfounded, vexatious complaints of “bullying and harassment” against the individuals involved. Even after those complaints were objectively investigated and dismissed without foundation, Ms Campbell continued to describe the individuals involved in a critical and defamatory manner, often publicly.

The Arbitrator moved to a determination about the Complaint on the basis of submissions which involved a preliminary assessment where consideration was made as to the reasonable prospect the complaint would succeed. The threshold for such a review is low. Ms Campbell must only show her evidence is not speculation or conjecture. The requirements of a prima facie case of discrimination were recently affirmed by the Supreme Court of Canada in Moore v. British Columbia 2012 SCC 61. To demonstrate prima facie discrimination, complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice.

In this matter, Ms Campbell has shown that she was disabled, in that she was frequently off work due to the knee injury and surgery. She could also show adverse consequences, i.e. the termination of her employment. The matter that the Arbitrator had to decide was whether she has no reasonable prospect of success in proving that there was a nexus between the disability and the adverse consequences.

The respondent’s evidence demonstrated that Ms Campbell had a longstanding and significant performance and behavioural issues at work. They provided evidence that they made numerous efforts to both bring their concerns to Ms Campbell’s attention and assist her in improving the situation, without success. The respondents submitted that they engaged in a fair, and transparent process of progressive discipline in response to Ms Campbell’s persistent pattern of poor performance and unacceptable behaviour at work.

Ms Campbell had a long history of making complaints and appeals and had submitted all the documentation to support her claim to the Arbitrator. In analysis the Arbitrator was unable to find a nexus between Ms Campbell’s disability and her dismissal. As such, her claims were dismissed upon preliminary review as having no likelihood of success.

This decision touches on an interesting dynamic, especially when an employer policy is limited to objective wording and/or a complaint is filed that an employee has been subject to discipline. I speak about the concept often in my training courses: in the analysis and investigation of the evidence, has a nexus been established? Has the Complainant made a connection in the evidence between their protected characteristic and the adverse impact? Often, I find that they have not. You may as well.

Supreme Court Judgment – R. v. Cole

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Some interesting arguments related to computer use and the expectation of privacy.

At my most recent workshop, a participant asked a question about property that is given to employees by the employer and the ability to access such assets in an investigation. After some discussion, he guided me to R. v. Cole, which, being from the Supreme Court is of particular interest. In my reading of the case, I am struck by the considerations for every decision in our legal system. In particular, this case, in my opinion is not absolutely instructive of Harassment Investigators as it largely involves a criminal case and considerations involving Police activity. Elements of the decision deal specifically with the concepts of privacy and the Employer’s policy instructions. Most organizations I have dealt with have similar computer use policies.

The accused, a teacher was charged with possession of child pornography and unauthorized use of a computer. He was permitted to use his work-issued laptop computer for incidental purposes which he did. While performing maintenance activities, a technician found on the accused’s laptop a hidden folder containing nude and partially nude photographs of an underage female student.  The technician notified the principal, and copied the photographs to a compact disc.  The principal seized the laptop, and school board technicians copied the temporary Internet files onto a second disc.  The laptop and both discs were handed over to the police, who without a warrant reviewed their contents and then created a mirror image of the hard drive for forensic purposes. 

The case diverges from a standard investigation in the workplace such as a Harassment investigation here, as the Police became involved. The teacher’s expectation of privacy was examined in that context. I have offered areas of the decision that are interesting to me.

“Computers that are reasonably used for personal purposes — whether found in the workplace or the home — contain information that is meaningful, intimate, and touching on the user’s biographical core.  Canadians may therefore reasonably expect privacy in the information contained on these computers, at least where personal use is permitted or reasonably expected.  Ownership of property is a relevant consideration, but is not determinative.  Workplace policies are also not determinative of a person’s reasonable expectation of privacy.  Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation.  While workplace policies and practices may diminish an individual’s expectation of privacy in a work computer, these sorts of operational realities do not in themselves remove the expectation entirely.  A reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8  of the Charter .  Accordingly, it is subject to state intrusion only under the authority of a reasonable law.”

“While the principal had a statutory duty to maintain a safe school environment, and, by necessary implication, a reasonable power to seize and search a school-board issued laptop, the lawful authority of the accused’s employer to seize and search the laptop did not furnish the police with the same power.”

The Policy and Procedures Manual of the school board asserted ownership over not only the hardware, but also the data stored on it: “Information technology systems and all data and messages generated on or handled by board equipment are considered to be the property of [the board], and are not the property of users of the information technology”.

Even as modified by practice, however, written policies are not determinative of a person’s reasonable expectation of privacy.  Whatever the policies state, one must consider the totality of the circumstances in order to determine whether privacy is a reasonable expectation in the particular situation

I have presented some of the arguments and conclusions of the Supreme Court. If you are interested in the full context, please refer to the source document. Of interest to me, the Court held that a workplace policy that explicitly states the laptop and all information is property of the Employer, however that does not by itself remove the accused’s expectation of privacy. A totality of the circumstances must be examined. Some more elements of the decision:

“Mr. Cole does not challenge the initial inspection of the laptop by the school technician in the context of routine maintenance activities.  He concedes, moreover, that the technician did not breach his s. 8  rights.  In this light, I leave for another day the finer points of an employer’s right to monitor computers issued to employees.”

and

“The Court of Appeal concluded that, in the circumstances of this case, the subsequent search and seizure of the laptop by school officials acting under the direction of the principal was not unreasonable within the meaning of s. 8  of the Charter .  Mr. Cole does not challenge this conclusion.”

and

“In any event, I agree with the Court of Appeal.  The principal had a statutory duty to maintain a safe school environment (Education Act, R.S.O. 1990, c. E.2, s. 265), and, by necessary implication, a reasonable power to seize and search a school-board-issued laptop if the principal believed on reasonable grounds that the hard drive contained compromising photographs of a student.  This implied power is not unlike the one found by the majority of this Court.”

These three parts sum up the applicability of this case to our environment, the internal or external Harassment investigation process. No objection to the Employer searching and seizing the laptop or the data was presented.

What this case does tell me is that Employer’s need to have a look at the applicability of their internal policies, especially in the area of computer usage, and in particular when cases involve actions that may be criminal in nature.

Thank you to the participant who helped me learn a little more in this field, let’s all keep helping each other!