Author Dylan Hill

Author Dylan Hill

Dylan Hill
January 9, 2016

Complaints Require Evidence

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Like many of you I enjoyed a little time off over the Holiday Season. That time seems to inevitably include the binge watching of Netflix offerings and this year the show that was all the rage was: Making a Murderer. While I am not going to wade into the criminal aspects of the case presented (no spoilers here) the show did turn my mind towards the levels of evidence and the challenges presented to any investigator. I will present the concepts of ‘prima facie’ and the ‘balance of probabilities’ below in the context of a real case and related to the landscape we find ourselves in, the Canadian labour market and tackling Harassment Investigations in the workplace. I have investigated a number of cases recently where the understanding of this concept was key.

What is prima facie?

Let’s first turn to the internet for a quick definition. “In legal practice the term generally is used to describe: the presentation of sufficient evidence by a claimant to support the legal claim (a prima facie case).” In more than a few of the cases that I investigate, research or hear about when I conduct training, it seems this concept is misunderstood or not considered at all. Simply put prima facie means that it is not sufficient for a Complainant to simply feel that they are being harassed or that discrimination is happening to them without any evidence to support that conclusion. The presentation of sufficient evidence is key. While I do not wish to minimize what is happening in broken relationships in the workplace, for the actions to rise to the level of a breach of relevant policy, they must at least rise above the level of prima facie. This means the presentation of sufficient evidence to support the claim.

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 the prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice.

The Supreme Court of Canada confirmed that in order to satisfy the “balance of probabilities” standard of proof evidence must be “sufficiently clear, convincing and cogent.”

Case in point:

An applicant testified at an Arbitration that he applied for a managerial position, was interviewed and was not successful in the competition. He said that he had been disadvantaged in the competition because he had not been given the opportunity to act in the position prior to the hiring process. The applicant testified that the decision for the hiring was not made by the panel, but rather was made by a man that he had filed a previous complaint about. The applicant testified that the decision not to hire him had no legitimate basis, but rather was a form of discrimination. The applicant self identified as being Black and of West Indian origin.

In his Application he alleges that during the period of five years he was subject to racial discrimination in twelve job competitions and on numerous occasions while he was carrying out the duties of his job.

Decision: The Application was dismissed in its entirety. The Arbitrator did not find that the applicant established that the respondent’s actions were discriminatory. The Arbitrator was satisfied that the respondent provided credible non-discriminatory explanations for its actions.

The employer was able to provide evidence that demonstrated the hiring decision was based on a solid practice, and in fact the applicant rated 10 out of the 13 people screened in for an interview, based on the average score received from multiple scorers involved in the interview.

The applicant submitted that the interview panel was unfair, as there was no Human Resources representative on the panel and that the scores were so similar. He contended there must have been collusion and that it must have been tainted by discriminatory considerations.

The Arbitrator stated that even if there had been less than optimal interview practices, that the absence of a perfect process did not mean that the applicant was treated differently based on his race, colour or place of origin. The Arbitrator ruled that the applicant had not established a plausible link between his race, colour or place of origin and having not been selected.

The applicant testified regarding another incident during which, he stated a manager spoke to him in a demeaning manner and bullied him. The evidence of a witness in the room contradicted this allegation, as did subsequent email evidence reviewed.

Of particular note the Arbitrator pointed out that the applicant did not provide details as to how the manager treated him beyond the generalizations that he felt demeaned and bullied. He did not explain why he believed the manager’s actions were related to his race, colour and place of origin except to essentially state that because he was bullied and demeaned, it was reasonable to conclude it was somehow discriminatory. The Arbitrator ruled that the applicant failed to meet his onus to show that on a balance of probabilities anything that happened in this meeting was discriminatory.

The applicant went on sick leave for a time and later returned. He testified that when he returned two managers came into his office on separate occasions and complimented him on how well he was doing since his return. The applicant testified that he thought these comments were disingenuous and he thought the managers were making fun of him since they had smirks on their faces. He testified that he knew from his overall experience that this was a further example of being singled out, of being treated unfairly because of his race. This further demonstrates the ill-will that can be created between individuals in the workplace. A smile is seen as a smirk, a comment on a job well done is translated as sarcasm. This element of the case was dismissed for similar reasons.

There were other elements to this case, but the essence is presented here. Complaints require evidence.

In closing I would like to wish you all a great 2016, filled with all the best. May your investigations conclude well and swiftly and may every witness be pleasant and co-operative! We have workshops scheduled for 2016 and I hope to see you at one of them!

Dylan Hill

Dylan Hill
October 6, 2015

Poor Management Techniques Have a Cost

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How “common” conflict behaviour end up at Human Rights and in costly investigation processes

In my work in the harassment investigation area, I am in the position to review countless cases where so called “normal” conflict behaviour leads down a path to unstable workplaces and costly investigative processes, both internal and external. In thinking about the issue I have become passionate regarding training Leaders to deal with conflict in an appropriate, flexible and nuanced way to help avoid some of the issues like the one below. In retrospect, it is easy to see where this relationship went off the rails. The costs (direct and indirect) are manifold and unnecessary.

Mr. Kent and Ms. Lee worked in an industrial environment and Mr. Kent was her supervisor. The facts presented at Arbitration were that they had some previous conflict where Ms. Lee had made “shooing” motions to Mr. Kent when he attempted to give her directions on a few occasions. On the day of the latest incident, Ms. Lee required some work direction and Mr. Kent arrived to provide it. Mr. Kent repeated his instructions three times and Ms. Lee became frustrated and said “Adios” and made the “shooing motion” once again. Mr. Kent left but returned shortly thereafter as he had determined not to put up with this behaviour any longer. What followed was a yelling match in the workplace and a complaint of harassment filed by Ms. Lee. When informed of the complaint Mr. Kent complained that Ms. Lee had harassed him.

An internal investigation occurred, Ms. Lee and Mr. Kent were interviewed. Union representatives and management representatives were present. Eight witnesses were identified and interviewed. It was concluded that the situation was not harassment but a workplace incident where both Mr. Kent and Ms. Lee behaved inappropriately. The conclusion advised discipline for both parties. Ms. Lee received a verbal warning and Mr. Kent received a written warning.

At the Arbitration, Ms. Lee testified that Mr. Kent came up to her running, was yelling, and was waving his hands in her face. Mr. Kent later explained that he was French and that French people talk with their hands. Both testified that they were yelling at each other. Mr. Kent said that Ms. Lee started yelling first.

There were other issues present in this case, including that Ms. Lee had been disciplined for previous issues. Ms. Lee also alleged that Mr. Kent had a history of treating her and others poorly and that this incident formed a pattern of behaviour (although she had not reported any of the previous incidents to management or the union).

One of the elements considered by the Arbitrator, was the element of intention, as has been considered in many cases. The Arbitrator once again noted that the test is not “did a person intend” to harass someone but rather “would a reasonable person know, or ought they to have known” the comment was unwelcome.

Similarly, the Arbitrator stated that Harassment is not proven simply because an employee takes offense at something that was said or done. There must be evidence that, from an objective standpoint, the alleged harasser knew or ought to have known that the comment was unwelcome.

Ultimately, the grievances were dismissed and the discipline was upheld.

Some of the questions I have when reading this decision are: 

1. At this point I find myself wondering: If Mr. Kent had an issue with this behaviour and if he resolved to deal with it the next time, why not deal with it before it happened again and when everyone was calm and there was not an immediate issue?

2. How much did this cost the organization and the people directly affected? How much would it have cost to deal with the issue proactively, in a more appropriate way?

3. How will this employment relationship be repaired?

Dylan Hill
July 18, 2015

Sexual Harassment is Alive and Well (Unfortunately!)

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After years of declining representation in Hill Advisory caseloads, 2014/2015 has seen a spike in high level sexual harassment investigations. We have seen similar in popular media and in our ongoing research in the area. Here is a recent case with some details that are not that different from some we have investigated recently.

Sally and John both worked in a Health care facility as Nurses. The complaint comes from Sally, against both the employer and John in relation to actions John took before and after their consensual extra-marital affair. Sally and John had an affair for over a year, inside and outside of the workplace. At the end, Sally was diagnosed with some mental health concerns, her husband found out about the affair and some of the details. Sally’s husband contacted the employer with a complaint and a few days later called back and alleged that John had sexually assaulted his wife in the workplace. When Sally was contacted by the employer, she said that she did not wish to file a complaint pursuant to their respectful workplace policy. A few days later, the employer was provided with a statement of complaint and Sally filed a Human Rights complaint. The employer conducted an internal investigation.

The tribunal dealt with a number of questions, including outlining some of the facts, deciding on a motion to anonymize the parties and an application by the employer to dismiss the claim. In the consideration of the above, the tribunal attempted to parse the actions that happened before, during and after the consensual relationship to determine the merit of the complaint.

Some of the incidents before the relationship were:

1. John walked up behind Sally and put his hand in her back pocket at work. She asked him to stop and he did.

2. John pulled Sally onto his lap when she was walking by him. He did not let her up right away but eventually did so.

3. John sent Sally numerous chat messages, text messages, Facebook messages which were “flirty” at first and progressed to outright propositions.

After approximately three years of behaviour like this which occurred with varying frequency and intensity, (and which Sally did not report), the relationship turned more consensual. Evidence of the consent was provided by both parties through chat logs etc. Sally told John that she had sexual dreams about him, and that she had suggested to her husband that John join in their sexual activities.

However, throughout their “consensual relationship” Sally alleged that there were several incidents when John subjected her to unwelcome sexual behaviour like exposing himself to her in a locked office and “unwanted sexual intercourse” in an office at work. Their relationship continued and she invited him to her house in the two weeks that her husband was away, where they engaged in sexual intercourse repeatedly.

Sally went on a holiday with her family that summer and when she returned, she told John that they had to stop seeing each other. Sally said that John would not stop and continued to aggressively pursue her. They met up one more time and had sexual intercourse. Shortly thereafter, Sally confessed the relationship to her husband and he contacted the employer to make them aware of his concerns. The employer had no previous knowledge of the relationship or the allegations of inappropriate behaviour prior to the commencement of the relationship.

Shortly after telling the employer that she dd not wish to file a complaint pursuant to their policies, she filed a complaint with the Human Rights Commission and forwarded a statement to the employer. They decided to conduct an internal investigation and at the end made an application to dismiss the claim.

The Tribunal considered the matter of timeliness (must be filed within six months of the alleged contravention or represent a pattern with the last instance within that timeframe). The Tribunal considered their ability to accept out of time evidence as well. The evidence presented was from 2010-2013 so was clearly out of time. Sally made arguments that the employer did not handle the situation properly, that they should have known and that her mental diagnosis contributed to the time delay. The Tribunal concluded that they could find no timely acts of the same character as others, so found that Sally’s allegations did not describe a contravention of the Code. The Tribunal further considered other factors Sally presented in her argument that the Tribunal should make an exception regarding the timeliness of the complaint, but ultimately ruled they would not exercise their discretion.

All of the cases we summarize include many factors and interesting points to learn from. What strikes me about this case is the difficulty in dealing with a scenario of a mutual relationship that ends. It seems many employers would prefer these types of complaints to stay outside of their policies and responsibility when things go wrong, but it seems to be an easy bar to cross to link these cases to the workplace, therefore placing it firmly in the employer’s lap. 

Of course, the most striking aspect of this case is the level of impropriety existent in our workplaces still. No matter where the facts eventually settle, are we really asked to accept behaviour like this anywhere, much less our workplaces? The area of sexual harassment of this level was rampant when Ms Cam Hill started our company 25 years ago, yet here I am conducting investigations into this re-emerged trend.