Author Dylan Hill

Author Dylan Hill

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!

Where’s The Proof?

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An examination of the prima facie principle of investigation

In the examination stage of any complaint of harassment and discrimination, a determination as to the existence (or absence of) a prima facie case is necessary. Let’s review some case law in order to properly make such a determination.

Mr Olson filed a complaint to the Human Rights Tribunal that he had been discriminated against on the basis of his sex in the handling of a complaint of bullying against him. Mr Olson was informed by a supervisor (Mr Taylor) that he was the “natural selection” for a new position in a school that represented a promotion, however he could not give Mr Olson the position because of a complaint of bullying against him. Ms Mainville had complained that Mr Olson had bullied her. Mr Olson asked about the details of the complaint but Mr Taylor said that he had none. Mr Olson told Mr Taylor that Ms Mainville had made a previous unsubstantiated complaint against him.

Mr Olson first heard of the complaint on his final day of work before his holiday but he wanted it investigated immediately as it could have a detrimental affect on his career and community standing but Mr Taylor said that it would be investigated after the summer break.

Mr Olson felt that the bullying charge would have a “calamitous effect” on his entire life, including volunteer work that he did. He was registered in a course with a colleague and he was “hyper-vigilant” with respect to all his interactions, as he did not have any details as to what he may have done wrong. Mr Olson pushed for more information and eventually stated that he felt if he was a woman, the matter would have been dealt with immediately. Mr Olson submitted that further evidence of discriminatory conduct was the employer’s failure to follow their own policy.

There was some confusion in that matter as to if a complaint had even been filed, as there was little to no documentary evidence. Timelines were complicated due to several accidents involving Mr Olson that necessitated time away.

In the analysis and decision portion of the case, the arbitrator turned to the element of a prima facie case. The arbitrator referred to the Supreme Court case (O’Malley v. Simpsons-Sears Ltd) in which they defined the term. In part, a prima facie case refers to the allegations which, “…if the allegations are believed, is sufficient to justify a finding in the complainant’s favour absent an answer or justification from the respondent.” The arbitrator referred to a case heard by the B.C. Human Rights Tribunal (Abary v. North York Branson Hospital) to further illustrate the concept of prima facie. In part the decision read, “…prima facie evidence means that a party’s case has been taken out of the realm of conjecture and that his evidence in support of an issue is sufficiently weighty to entitle a reasonable man to decide the issue in his favour…”

One element that exists in this case, that I see regularly played out in my work is the element of a complainant asserting an element that they feel or think is at play, sometimes because they can think of no other explanation. However, in many cases, the complainant fails to provide any evidence as to why they believe this to be the case, beyond the general assertion. In this case, Mr Olson said that he believed he was discriminated against on the basis of his sex, yet he provided no evidence to back up that claim. The arbitrator concluded in the only way possible in my opinion, and the complaint was dismissed. The arbitrator noted, “There was no evidence of different or adverse conduct based on Mr Olson’s sex.” The analysis of the evidence was done, on the sole basis of the evidence presented by the complainant, who failed to meet this basic burden on proof.

Part of the work we do in the investigation of complaints of harassment and discrimination, involves this core concept, analysis of the complaint to determine how to proceed. A proper analysis with respect to the prima facie principle can increase organizational efficiency and workforce understanding of the importance of weighing evidence.

We are heading out of our summer season and into a packed training calendar for the fall and winter. I look forward to seeing you, or colleagues in our sessions, and discussing this concept further!