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Racist Comments Are Wrong – But Still Happen At Work

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How one Employer in Alberta recently handled an investigation

In preparation for our upcoming workshop in Alberta, I thought I would research an Alberta case this time around. As always, it provides great learnings for the Investigator in all of us. I look forward to meeting those of you attending our sessions and getting into the business of asking questions!

This case occurred in Edmonton and was heard by an Arbitation Panel. The Arbitration flows from Mr Smith’s grievance related to his dismissal. Mr Smith was a heavy duty mechanic for about two years prior to his dismissal for making disparaging and racist comments to a co-worker. Mr Smith denied making the comments. Part of the agreed statement of facts was reference to Mr Smith having undergone the Employer’s Respectful Workplace training and reference that he was provided documentation to that effect.

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The incident that led to Mr Smith’s dismissal was documented in email amongst the management team of the employer and details the statements Mr Smith is said to have made to a fellow employee which include: referring to him as a “monkey”, and saying “I am going to use your black skin to wrap around my steering wheel”. The statements were witnessed by two co-workers, over the course of a few days and on one occasion a co-worker attempted to intervene.

Interestingly, both Mr Smith and the target of the comments, Mr Jones were fairly recent immigrants to Canada. Mr Smith had immigrated from Romania and Mr Jones had immigrated from Sudan. Both men had learned English as a second language before they began working together. The relationship between the two seemed fine before the incident. Mr Smith had some extensive dental work done and returned to work. Mr Jones thought that perhaps Mr Smith was being affected by some medication he was on as Mr Smith started making racist and offensive comments to him. Mr Jones did not know what to do and was upset in the workplace.

In his testimony Mr Smith referring to being at the dentist and recovering from anesthesia. He referred to a discussion involving animals in Africa, but denied calling Mr Jones a “monkey”. He also denied swearing at him and referring to his mother in a derogatory fashion. He testified that he had made a reference to Mr Jones’ skin being soft and compared it to a steering wheel leather. He said that discussions on Mr Jones’ skin texture were not uncommon and he did not believe the were offensive. Mr Smith asked the Arbitration panel to check with witnesses, who he was sure would support his version of the events.

WItness testimony confirmed Mr Jones’ testimony and directly contradicted Mr Smith’s. The employer interviewed all involved. It was noted that in some of the witness testimony, there was no reference to the word “monkey”. The witness indicated that he had not been shown a copy of the statement that he gave and was not given a chance to review the content.

Upon speaking to witnesses, the employer’s representatives determined that the comments were made, that Mr Smith denied them and did not seem to appreciate the gravity of his actions and they recommended termination.

During the interview with Mr Smith, the investigator was asking questions and typing essence responses into a computer as Mr Smith was speaking. Mr Smith was agitated and refused to answer the investigator’s questions if she kept typing. Eventually another investigator took over and asked the questions. The meeting ended with Mr Smith no longer answering questions or making eye contact.

A few lessons to be learned here. First, it is solid practice to have a witness review the statement generated from a formal interview. Not only does this provide a much clearer version of the evidence, it also provides an agreed upon document that can be tendered as evidence should a case be appealed to another jurisdiction, which it was here. Second, it seems the investigators may have shied away from using the offensive terms that were spoken in their notes. While this may not be the case, it brings to mind the tendencies we can all have, to “soften” or be overly general with respect to offensive evidence. Generally, if a term is used and will form the basis of a decision on employment status, it is better to include the exact phrasing rather than place your own “lens” in the way. In this case, the lack of inclusion of the phrase (although the witnesses recall stating it) is used by the Union counsel to attempt to overturn the employers decision at Arbitration. Third, the issue of typing while trying to conduct an interview and the effect of the investigator upon a person being interviewed. Quite simply, in my opinion, the most important thought process for a successful investigator is not “how am I going to take notes” and is more along the lines of “how is my process working (or not) for this particular witness, at this time and is there any way I can change what I am doing to help with the process”. The argument that a person being interviewed is being “uncooperative” or “disrespectful” happens all too often. The core of our practice and teaching is learning to overcome these manners of thinking and investigating in order to present a solid case finding, backed by the evidence, which is not influenced by bias or pre-conceived notions, and that can  stand up to third party scrutiny. There are many working parts.

In the end, the arguments from the Union counsel were not quite enough, in a majority decision, the Arbitration panel upheld the employer’s decision.

While I agree with the ultimate disposition of this case, it strikes me that several of the hurdles the employer counsel had to navigate could have been mitigated with a more thorough process from the beginning. There’s just no telling which cases will go to appeal, so our motto is “treat each case as if it might”.

Many Levels of Risk: Conflict and Investigations

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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.

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