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Dylan Hill
March 1, 2011

Harassment – Not Simply A Feeling

THE BURDEN OF PROOF EXISTS FOR THE COMPLAINANT

Ms Mora was employed as a pharmacy technician at a retail location. Mr Karan joined that location as a pharmacist. Ms Mora complained that she had been harassed and then subsequently complained that her Employer had failed to take appropriate steps to deal with her harassment complaint. The Employer denied that Ms Mora had been harassed and said that it had conducted a proper investigation of her complaints.

Ms Mora alleged that over the period of two years during which they worked together, Mr Karan made verbal comments to her, which amounted to harassment on the basis of age and sex.

Ms Mora’s first example constituted a comment made by Mr Karan soon after he came to be employed at the same location. Mr Karan said that he liked his new job and that he intended on staying at the pharmacy. She did not provide any detail as to how this comment harassed her on the basis of age or sex.

Ms Mora testified that there was further harassment when Mr Karan told her he might call head office and say bad things about her and that head office would believe him as the Employer needed pharmacists and did not need pharmacy technicians. Mr Karan denied the allegation but did indicate he had concerns with Ms Mora’s work performance which he addressed with management.

Ms Mora testified that Mr Karan told her that the job of pharmacy technician was an easy job and that he wanted it for his wife. Mr Karan denied the comments and indicated that his wife ended up working in the same pharmacy as a pharmacist. She said he made comments about the value of her house and her RRSP’s. Ms Mora asked Mr Karan how he would know where she lived and asked if he had driven by her home. He did not answer but Ms Mora took his body language to mean that he had indeed driven past her home.

Ms Mora said he was always complaining and putting her down in any way he could.

27 months later

Ms Mora testified that 27 months later Mr Karan yelled at her “What kind of hormones are you taking?” Ms Mora understood that comment to be a reference to menopause and to her age. He had earlier asked her what she was doing to remain so youthful, so young looking. Mr Karan denied making the comment or yelling at her. He indicated he had filled prescriptions for her on occasion so had some access to her medication information.

Reported

Ms Mora said that there had been one or two meetings where she, the store manager, Mr Karan and, the pharmacy supervisor had discussed matters relating to the difficulties between herself and Mr Karan. She said that she had not reported her specific concerns to the Employer but, instead, she had indicated that Mr Karan was treating her unfairly, yelling at her, and scolding her. She said that Mr Karan brought up her poor job performance. She testified that nothing was solved at the meetings. Management testified that they addressed the situation appropriately.

The complaint

Ms Mora filed a Human Rights complaint and that was examined as part of the Arbitration. During examination, Ms Mora acknowledged that in her complaint she had deliberately provided incorrect dates for some of the alleged incidents of harassment. Ms Mora had dated some of the incidents 2 years later than they had actually occurred to make them appear more recent. Ms Mora testified that she felt she had to take these steps, in order to protect herself because no one would give her any protection.

Ms Mora testified that she had been off work for a significant period of time and attributed that time off to dealing with Mr Karan. She indicated that the interactions with him had caused a variety of medical disorders, including nausea and vomiting when considering a return to the workplace.

During cross examination at the Arbitration, she stated that the concern she reported to management about Mr Karan was related to him being ‘short’ with her and raising his voice. She agreed that Mr Karan indicated he had concerns with her job performance at that meeting. She also agreed that Mr Karan had said that if he offended her he was sorry and that he did not intend to offend her. She agreed that she and Mr Karan were told that they needed to be civil to one another and work together.

Ms Mora testified that she had requested a meeting with Ms Shore (the Employer’s Senior Manager, Industrial Relations) with a Union representative. She said she had wanted to meet with her because all the other persons investigating her complaints had been men. Ms Shore asked her about the events and they had a full meeting about the issues. Ms Shore asked if anyone had witnessed the events and Ms Mora took that to mean that she did not believe her.

Observations

Ms Mora failed to respond frequently during the cross examination and needed to be asked questions multiple times. When advised that witnesses contradicted her testimony, Ms Mora frequently responded that they were not truthful persons.

Ms Mora wrote several letters to others within the organization complaining that she had been harassed and complaining that the Employer had failed to respond to her harassment complaint. The Arbitrator found that the letters uniformly “stretched the truth.” She characterized the issues as being ignored by management. A number of her comments were contrary to her own evidence at the hearing.

The Findings

The Arbitrator examined each of the reported incidents and weighed them against the Human Rights Code and the Collective Agreement. Ms Mora had complained that she had been harassed on the basis of age and sex.

He concluded that harassment had notoccurred.

Further, the Arbitrator looked at the credibility of the main parties. Henoted that Ms Mora was willing to lie on her Human Rights Code complaint. He also noted her willingness to shape her evidence to her favor both in her letters to the Employer and at the hearing. He found that Ms Mora was not a direct and forth right witness at the hearing. He found Ms Mora lacked credibility.

The arbitrator found Mr Karan to be a credible witness.

The Arbitrator found the Employer did conduct a reasonable investigation and reached a conclusion that no harassment took place based on its review of the evidence. The Employer reviewed the matter on at least two further occasions and, in each instance, reaffirmed its earlier conclusion. The arbitrator stated “I can find no fault with the Employer’s investigation.” The arbitrator concluded “both the grievance and the complaint under the Code are dismissed.”

Dylan Hill
December 1, 2010

On A Frolic – Rogue Supervisor

How a lack of Management training can cost you

Mr Hornsby was employed as an Operator at a City yard. He was discharged from the City by way of letter dated December 24th which referred to ‘inappropriate behavior in the workplace’. The ‘inappropriate behavior’ related primarily to a number of statements made by Mr Hornsby to visible minority employees. The Union submitted a grievance which alleged that Mr Hornsby had been unjustly discharged.

Counsel for the Union acknowledged that Mr Hornsby had used inappropriate language in the workplace but submitted it had been known to management when it occurred. He contended that the City should have provided Mr Hornsby with an opportunity to correct his behaviour by advising him that his comments were inappropriate and that if they continued his employment would be in jeopardy.

Mr Jack was a visible minority employee at the yard and he described himself as being from Jamaica. Mr Jack testified that Mr Hornsby used highly inappropriate language towards him and made him the butt of jokes.

Mr Jack related an incident involving a toy gorilla. Mr Jack said he went to relieve Mr Hornsby and saw a toy gorilla hanging in the booth. Mr Hornsby said he had acquired the toy for his cat. Mr Jack was so upset, he threw the gorilla in to the compactor. Mr Jack said Mr Hornsby made a comment that Mr Jack had thrown it out because he did not like it as it reminded him of himself. Mr Hornsby denied making the statement. Mr Hornsby was heard making various statements about gorillas, monkeys and grease monkeys in the workplace and related the comments to Mr Jack.

Mr Hornsby also changed some of the terms in the workplace to have racist meanings. The term ‘back blading’ was altered to ‘black blading’, the instruction to use a back hoe was modified to ‘hoe time’ or calling Mr Jack ‘hoe boy.’

Mr Jack told Mr Hornsby to stop calling him these names and using the references. He complained to a variety of supervisors. He said Mr Hornsby’s behavior would improve for a bit, then worsen again.

Mr Hornsby referred to a Caribana festival and proposed making up shirts that referred to ‘colored kids’ and also referred to the festival being perfect for white people to go recover the goods black people had stolen from them.

Mr Hornsby referred to gunplay in the lunchroom and said, “Let all the spooks shoot each other.” He also accused an employee who was a visible minority of calling another employee ‘the n word.’ He referred to Mr Jack as “a shady character” and “a black beauty”. Mr Hornsby referred to a road called “Whites road” and indicated black people could not cross it.

Several employees complained to various levels of management without avail. They were simply asked if they wanted to report it. The employees told management they simply wanted the behavior to stop.

Employees had told Mr Hornsby that his comments needed to stop. Witnesses to the behavior made comments about it with supervisors present. Nothing was done because nobody expressed the desire to file a formal written complaint.

City’s position

The City contended that Mr Hornsby had engaged in calculated harassment and discrimination against Mr Jack and other employees. He contended that management had not condoned racial name calling in the workplace. He argued that if a supervisor had failed to do anything about such conduct this did not mean the City had condoned it but rather that the supervisor had been on “a frolic of his own” or was acting in a “rogue capacity”.

He argued that the Union should not be able to hide behind a claim of condonation since a Union steward had known about the name calling and had not taken it up with the Union hierarchy or with management.

He said he was pleading to have a 27 year employee who was 56 when discharged be given a second chance. He submitted that the principles advanced by the City could be upheld short of discharge.

Union position

Union counsel contended that Mr Hornsby was not the only one who had failed to meet the standards set out in the human rights policy. He argued that employees, front line supervisors and managers failed to meet those standards.

He submitted that others in the work force had used expressions of a racial nature, including Mr Hornsby. He said that while condonation is not a defense it can be taken into account when assessing the proper penalty.

He reviewed the occasions when employees had advised supervisors of what had occurred and in response the supervisors had done nothing other than ask if they wanted to file a complaint. He argued that this had not been in accordance with the City’s policy and that there had been an onus on management to do something about the situation. He submitted that the supervisors had never told Mr Hornsby that his conduct was inappropriate.

He contended that the City had failed to put Mr Hornsby on notice that due to his conduct his continued employment was in jeopardy and allow him the opportunity to cease and desist from such conduct.

Conclusion

The arbitrator did not accept the City’s suggestion that it can escape responsibility for the lack of management action when employees complained by saying they were ‘on a frolic’ of their own or were rogue supervisors. He found that the evidence suggests that the supervisors understood that they should only address an employee’s complaint about another employee if they were willing to put it in writing. He concluded, “While such an approach has now generally been discredited with respect to issues involving racial and sexual harassment it was the approach utilized…”

The arbitrator concluded that some evidence of other employees using racist language in the workplace existed and that all such occasions would have been liable to some sort of discipline. He stated,“The evidence, however, indicates that most of the racial terms in the workplace were used by the griever. His conduct differed in nature and degree from that of the other employees.

He concluded that management had not lived up to it’s responsibility of taking appropriate action on becoming aware of the situation. He stated, “Not withstanding this, most of the offensive language used by the griever would reasonably have been known by him to be unacceptable and he did not change his approach after…” Mr Jack complained to him about the language.

Finally, the Arbitrator concluded, “…that the City had reasonable cause to discharge the griever and I am not prepared to substitute some lesser penalty.”

Dylan Hill
September 1, 2010

'A Downward Spiral'

We can’t make it up!

Mr Rogers was a Lawyer by training and the Director of Labour Relations for a City. Ms Ray was the Chief of Staff for the City. Mr Rogers and Ms Ray had a romantic relationship that lasted 2 years. Mr Rogers’ inability to accept the end of the relationship began his downward spiral.

After two years, Ms Ray decided to end her relationship with Mr Rogers because she could not see a future. Mr Rogers refused to accept the fact that the relationship was over and the reasons given for the breakup.

A while later, Mr Rogers and Ms Ray went to a resort for a preplanned vacation together. Ms Ray reiterated that she wished to end the relationship and eventually Mr Rogers seemed to agree.

A few days later, Mr Rogers called Ms Ray at 4:00 a.m. very emotional and inconsolable. He told her that he could not envision a life without her. She repeated that she did not love him and clearly communicated to him that the romantic relationship was over. She refused his request to reconsider her decision. She told him that they could be friends.

Shortly after, Mr Rogers visited Ms Ray’s parents’ home, uninvited. He discussed their relationship with Ms Ray’s mother and asked her to intervene. Ms Ray’s mother refused, say- ing she had no intention of interfering in her grown child’s life. Mr Rogers’ communication at the time showed clearly that he understood the relationship was over.

Mr Rogers started going to Ms Ray’s home uninvited. He knocked on her front door and when there was no answer, went through the alley and to her back door to knock.

Mr Rogers began parking his car next to Ms Ray’s in the parking lot at work, which he had never done before. He also started standing on a path outside Ms Ray’s office window and looked in at her. When Ms Ray first saw him, she waved nervously. She eventually started hiding in the corner by her computer. She saw him outside between five and 10 times.

The Spiral

Ms Ray spoke to Mr Rogers in the late summer and stated again that their romantic relationship was over. She said his behavior was unacceptable and that it was unsettling. Ms Ray thought that by the end of the meeting Mr Rogers had accepted the message and that they would not see each other even as friends.

Mr Rogers repeatedly asked Ms Ray to attend events with him and to travel with him throughout the Summer and Fall.

The wording in his emails clearly showed that he knew she might not welcome the repeated offers. Mr Rogers deliberately refused to accept that the relationship was terminated and to respect Ms Ray’s expressed wishes to be left alone.

Ms Ray’s contract was up for renewal in the Fall and Mr Rogers decided to personally handle the work even though he was in a clear conflict of interest.

Mr Rogers made an appointment with the Mayor and discussed the termination of his relationship with Ms Ray. He told the Mayor he had strong feelings for Ms Ray, was still in love, and that he could provide a good standard of living for Ms Ray. They discussed Ms Ray’s contract. Mr Rogers told the Mayor Ms Ray did not want to see him anymore and that he thought it might be due to work related pressures.

Word of the meeting got back to Ms Ray who was upset that her personal life would be discussed in this manner.

Ms Ray met with Mr Rogers in a pub- lic setting because she was growing more concerned with his behavior. She was very angry because he had spoken to her parents, and the Mayor about their relationship.

Ms Ray told Mr Rogers she was alarmed at his behavior, including that he was standing beside her office window and was parking his car near hers. Mr Rogers acknowledged that he was moving his car to serve as a reminder that he was ‘always there.’

Mr Rogers showed Ms Ray one of the cards she had given him while they were in the relationship. Ms Ray snapped it out of his hand and tore it up in little pieces saying ‘you need a visual.’

Mr Rogers said that he was looking for property and that he hoped she might think about moving in. He said that he was prepared to marry her as he had ‘put in a lot of time.’ Ms Ray said she had moved on with her life and that he was going to have to move on with his.

Mr Rogers continued his uninvited visits to Ms Ray’s house, the parking, the watching, the calls to her family, and the email invitations.

Mr Rogers told Ms Ray that he was in counseling and suggested a meeting with Ms Ray in order to gain closure. She agreed to meet in her office on those grounds. Mr Rogers arrived and told Ms Ray that there was only one ‘soul mate’ for every person and she was his. Ms Ray stopped him and asked him to leave. He apologized and asked to hold her hand, which she refused. Mr Rogers told Ms Ray he was prepared to marry her. She re- fused. He started to recite a poem to her. She ripped up the poem. She told him she was seeing Mr Zastre (a coworker).

Mr Rogers became abusive, called her a thief, a liar and a coward. She asked him to leave and he did.

Mr Rogers asked to be excluded from any meetings that involved Ms Ray. His boss said that was not possible in all circumstances and told Mr Rogers the expectation was that he would be professional in his dealings with Ms Ray.

Mr Rogers got in touch Mr Zastre’s ex-wife who was extremely upset and was planning to go to the media with information about Mr Zastre and Ms Ray. Mr Rogers provided her some more information, including a derogatory comment Ms Ray had once made regarding the Mayor.

Bottom

Mr Rogers asked to meet with the Mayor when the media situation became known. He advised that the Mayor ‘get ahead’ of the upcoming article and terminate Ms Ray. The Mayor had no intention of doing such a thing.

Finally, Mr Rogers was driving down the street where Ms Ray and Mr Zastre lived and saw Mr Zastre walking. He followed behind closely while revving his engine. Mr Zastre tried to cross the street and Mr Rogers accelerated towards him at a high rate of speed. He had to jump back to avoid injury.

Mr Rogers was criminally charged with a number of offenses, which were ultimately dropped in exchange for an apology and a peace bond. Mr Rogers later denied that he meant any of the statements made at the proceedings. Further, he said that he had not meant the apology. He was suspended pending an investigation. The investigation concluded that there had been a violation of the workplace harassment policies, an abuse of authority, a betrayal of trust, a demon- strated conflict of interest, and clear evidence of a retaliation on Ms Ray.

Mr Rogers was terminated with cause. He filed a case of wrongful dismissal.

After a thorough review of all the evidence, the Court found it was appropriate for the City to terminate Mr Rogers’s employment for cause and his claim was dismissed.