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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!

Why I Love Training

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Little did I know what changes would arrive when I accepted the position at Hill Advisory Services almost 20 years ago. As I sit in another airport today, having finished a training session, and on my way back home, I thought it might be nice to share some thoughts, namely what I love about training.

Our little company basically does two things: we investigate and we train. This week I had the chance to train some excellent professionals and in the course of the training I was able to share some of my thoughts, hear some of theirs and have a few laughs.

What do I love about training investigators? That’s relatively simple, everything. This week in Calgary we offered Harassment Investigation, Level 1&2. I was able to spend 3 and 5 days with my group as we wove through two separate true life cases and worked with professional actors. The basics: we offer theory, then progress quickly into the business of “doing”. We focus on small group work and targeted discussions which enhance learning at every step. Level 1 features a case that is memorable for past participants and allows us to plan for, and interview a complainant, a respondent and a witness. During Level 2 we interact with two witnesses, and progress to the redirect interview and a finding in the case.

These tasks form the framework for the real important work: analysis and discussion related to the dynamics that exist in every case. We have a chance to talk about why people react the way they do, what words we should use, how to prepare, how to be focussed, how to deal with strange situations, how to stay within scope, and ultimately, the holy grail; how do we base a conclusion on the evidence presented so that the finding can stand up to external judicial review!

My favourite part of every training session is that point, (and it can come at any time) where we transfer through some of the more concrete ideas and into the more abstract. In understanding some of the underlying dynamics, we are better equipped to handle a diverse experience in the future. It’s not so much about “how do you do it” in the form of a flowchart or template and more about “here’s some things that I think about when confronted with similar situations”. In this way, we all grow. Without honest participation, this is not possible.

I have been fortunate enough to develop this training package and see the growth in countless groups over the years and at the end of every training session I truly feel as if it was the best one to date. That’s a great feeling!

If you have been a part of our training, thank you for your humour, your hard work, your questions and your compliments. If we have yet to meet, I hope to see you soon, for the best training I have ever conducted!

Employee Terminated For Workplace Violence – Then Overturned

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How failing to pay attention to detail and a decision to terminate an employee for workplace violence combined to create an overturned decision

As a Harassment and Discrimination investigator, I often find myself conducting investigations that have similar characteristics to the case presented below. Workplace violence is one of the most frightening and damaging actions in any workplace, and it is especially important to take quick, decisive action which is based on evidence to resolve the issue and to attempt to begin repairing the damage done. A negative decision on appeal can have many impacts. The second fascinating concept involves proper progressive discipline and the concept of front line supervisors and managers dealing with issues as they arise, rather than attempting to demonstrate a pattern post—culminating incident.

*All names and other identifying details altered to protect the innocent (and not so innocent) *

This case involves two female employees (Anne and Sophie) and an interaction deemed to be a violation of the employer’s workplace violence policy. Anne worked for the employer for 10 years and allegedly had a history of harassing and bullying co-workers (more on this later). The incident involved a verbal argument which escalated to a physical confrontation in an office environment where Anne pinned Sophie in her chair (which was wedged against a wall) and refuse to cease the behaviour. A witness to the events intervened when they heard Sophie ask for help and say she could not breathe. Nothing was said to Anne and she went home. An investigation was conducted later and Anne was terminated. The union grieved the termination and an Arbitrator was assigned.

Nobody reported the incident immediately and some reasons given were that co-workers were afraid of Anne as she had been harassing and bullying them without seeming consequence for some time. They were afraid of potential retaliation. One witness said she did not want to report the behaviour as she felt it would constitute “ratting out” a fellow union member. The incident did come to the attention of management when Sheri (a leader) approached some of the workers and asked how things were going. Sheri picked up on some tension and followed it up (Well done!). 

Sophie told Sheri what happened in a lengthy and emotional conversation and also related incidents of being bullied and specifically of Anne putting her in a headlock the previous summer and of Anne deliberately unzipping Sophie’s top one day. Sheri asked Sophie to put the information in writing and assured her that retaliation would not be condoned.

The element of asking or even requiring a complainant to put complaints in writing strikes me as potentially counter-productive and potentially fraught with liability. If we wonder about potential outcomes of an employee sharing specific concerns with a leader that are prima facie breaches to any policy, much less the harassment policy, and we ask them to put the allegations in writing, what do we do with time delays, reluctance to put items in writing and even withdrawal from the process or changing information? Would a better way not be for the leader to take notes about the concerns, consult with partners, and when appropriate to the concern, initiate a more formal process and interview with the complainant to get full detail? In my opinion it is a much better path.

After some prompting Sophie provided a written statement, however it did not refer to the past bullying instances which she had reported to Sheri (now we have a problem). Sheri interviewed witnesses and obtained statements. She also interviewed Anne and read out Sophie’s statement to her. She did not provide a copy beforehand and did not give her any time to prepare a defense (contrary to the Principles of Natural Justice). Sheri did not mention the additional information that Sophie had given her orally but which she had omitted when writing it up. Anne denied the context of the situation and indicated she had simply been giving Sophie a “goodbye hug” and there was no conflict whatsoever.

The arbitrator preferred the evidence of Sophie and the two witnesses to that of Anne’s. There were other elements to the case in which the arbitrator illustrated points wherein Anne’s credibility and the veracity of her testimony was challenged significantly.

The employer provided the rationale for Anne’s dismissal as: the incident of workplace violence, as well as “unprofessional conduct unbecoming” of her position and relied on various complaints about her behaviour in the past several years. It is important to note, the arbitrator stated, that although Anne had been counselled and spoken to about her interactions with others, in the two years preceding her discharge Anne was never disciplined as a result of her behaviour, conduct, or attitude towards other employees.

The employer relied on the one incident and also referred to a general awareness of previous incidents but did not in some cases have all the relevant information about those events and in the letter of dismissal did not rely on the past incidents. The arbitrator accepted the union’s position that the past history could not be relied upon to constitute cause as the proper progressive discipline had not been done.

The arbitrator conducted a point by point analysis of the dismissal decision as it related to the points made by management in the letter of dismissal and found that many of the grounds did not have the proper underpinning (ie formal action and documentation, and lack of proper process). The arbitrator ruled that the elements were not sufficient for dismissal.

In hindsight, I am sure we can all see that proper disciplinary processes could have played a role and could have prevented a finding that had an employee who had harassed and bullied others, (up to and including physically) in the workplace from being re-instated. This costly process could have been avoided entirely with leaders who are committed to leading and are provided the skills and understanding of scope as it relates to managing workplaces appropriately. 

The termination was overturned, however, the arbitrator found Anne should not be reinstated to the workplace as she was likely to repeat the behaviour. The arbitrator wrote a well-reasoned opinion in justification of this conclusion, including that Anne steadfastly denied any wrong-doing and that her testimony had so many conflicting statements and was so totally self-serving.

In the end, the parties were instructed to negotiate an appropriate financial settlement, in lieu of re-instatement. Those direct costs can be added to the pile of indirect costs that were incurred by the mis-management of this problem employee in the workplace for the better part of 10 years.

What are we to learn from cases like this? For me, it re-enforces a strongly held belief; address problems honestly, and appropriately at the time with a steady gaze fixed to the leadership of the entire organization. Inform every conflict decision with this philosophy and that will get you half-way there. I’d love to hear what you think, you can connect with me all the usual ways!


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