Right now, today, at this very moment, there is an incident happening that will require (or if not require end up) in a formal Harassment Investigation. Some of those will land on my desk. This is a fact. I would prefer to help the leaders out there with the skill of early resolution! Yes, my company does that too! Check out our available workshops.
For those that do end up in an investigation: some will go external. Some of those will make it to my desk and I am not worried about those. They will be done well, guaranteed.
I worry for those that land on desks unfamiliar with the work, and those thinking of interviewing and investigation work as a game, as a movie or TV like confession. I worry for the organizations who incur unnecessary risks and exposure due to a lack of experience or trained resources. To do our part, Hill Advisory has committed to donating a seat in our upcoming courses to HR Students or Non-profit organizations, who may otherwise not ever have access to this area of specialized training.
I invite you all to attend our Harassment Investigation courses, coming to a city near you in 2016 and beyond. If you don’t learn more than you believed you could and gain a totally new perspective on formal Harassment complaint and if you do not leave with more tools than you previously had and if you don’t have some fun along the way, I’ll offer you a full refund! Hope to see you in 2016.
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!
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?