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Dylan Hill
September 9, 2014

Did Sexual Harassment Lead to Dismissal?

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Background

Emma, Allen and Jim worked together in a Correctional Facility. Allen and Jim were on the Tactical team and had seniority over Emma. Emma was 21 years old when she started her work and was physically smaller than both Allen and Jim. The events that led to an Arbitration included an allegation that Allen and Jim picked Emma up, carried her into the male change room (despite her loud objections), placed her on her back on a bench in that location, and undid her belt and pants. They were interrupted by a male co-worker (Paul) who walked out of the bathroom area. The incident lasted 30 seconds. Further events occurred that day between Allen, Jim and Emma. Emma filed a complaint and an internal investigation found her to be more “credible” than Jim and Allen. They were terminated and criminal charges were filed. Jim and Allen were convicted of sexual assault at Provincial Court, however, Allen applied for a mistrial and the charges against him were eventually stayed. Jim appealed his conviction and it was overturned by the Court of Queen’s Bench. Jim and Allen grieved the Employer’s decision to terminate them and an Arbitration Panel heard submissions.

One of the central issues at Arbitration was the evidence presented that there was horseplay, teasing, and pranks, some of it sexual and that the activities were common among many staff, including management. Numerous examples of horseplay, some involving Jim and Allen as well as Emma were provided by various witnesses. Examples included grabbing one another, patting on the bum, hugging, and commenting on body parts and sexual acts. Other examples were the ripping off of clothing, placing a co-worker in restraints, and pulling on a female staff member’s underwear. Evidence was submitted that various levels of management witnessed, condoned, participated and even justified this behaviour at Arbitration as activity that was essential to “blow off steam” in their particular high stress environment. One of the Union’s contentions in grieving the Employer’s termination of Allen and Jim was that this behaviour was common, condoned, Emma participated and that the actions that led to their dismissal was merely more of the above, horseplay.

The Day in Question

It was not disputed that Jim and Allen picked Emma up, carried her into the men’s change room and placed her on her back on a bench in that room. Jim and Allen denied that Emma had resisted their actions and characterized her as a willing participant to their joke. They denied that Allen had undone Emma’s pants or belt. Jim and Allen described Emma’s behaviour as joking directly after this event, a contention that they felt strengthened their contention that nothing untoward had happened.

Emma contended that she had in fact been harassed, had in fact yelled at Jim and Allen to stop the actions and that they had only stopped when a third party (Paul) entered the room.

Paul gave evidence at the Arbitration that he had a fleeting view of Emma in the room, with Jim and Allen holding her on the bench and stated he thought that Allen was “tickling” Emma. He stated that he did not see any evidence of Emma’s pants being undone. Paul indicated that when he made a joke about what he saw (and assumed had been a prank) in the lunch room, Allen threatened him by telling him to “keep his mouth shut” and implied that he would not “be there” when Paul needed help in the Facility. Numerous witnesses described Emma’s mood as significantly different after the event had occurred.

Emma testified that after the event, she resumed her shift in the control room with Allen and Jim and that they attempted to intimidate her further. She testified that Allen told her that if he had her pants down in the change room he would have raped her (using extremely vulgar terms). Allen also dropped a pencil and when he picked it up, attempted to pry Emma’s legs open and made comments about oral sex. Jim and Allen denied these allegations and there was nobody else in the room.

The Investigation

Jim and Allen were suspended and an investigation occurred. Credibility was at issue and the investigator’s made the conclusions that Emma’s entire statement was “believable because her credibility remains strong” and that Emma “presented as a very honest witness” who spoke of her own part in previous joking with Allen and Jim. In cross-examination the investigator was questioned on some inconsistencies in Emma’s version with the attempt to undermine the credibility finding.

The Arbitration Finding

The Arbitration Board set out on the difficult task of determining the facts of the case. They relied on cautions seen in Faryna v. Chorney [1952] 2 D.L.R. 354 (B.C.C.A.) at 357, which we have seen referenced commonly and which relates specifically to the considerations necessary to determine credibility. One of the more important points in this award is the difference in the assessment tool of the Arbitration Panel and the internal investigation. Although they reach, essentially, the same conclusion, one is based on statements like “presented as a very honest witness”, which is open to attack and interpretation and the other is based on a reasoned, methodical analysis, supported by the jurisprudence related to the topic. After careful consideration, the Panel preferred Emma’s version of the events that day and upheld the dismissal of Allen. The Panel substituted a suspension for Jim, with the reasoning that he was not as involved in the direct actions against Emma (not undoing her pants or making the threats or comments later in the day) and that he made several attempts to determine if Emma was okay, showing some concern for her well-being. The Panel concluded that Jim was disentitled to any back pay (for over 3 years) or other compensation.

To Consider

I ask myself: What part did the permissive environment play in this case? Why does almost every environment consider itself somehow special to the point where activities like this can be condoned by management? By people who are supposed to be leaders in the organization?

I ask myself how I do my job, investigating and training. Is it simply enough to believe a witness, how do I determine credibility, and how would I answer cross-examination on the cases I am currently working on. How do I affect the individuals I encounter and the organizations that come out to training or hire us to conduct investigations?

I, for one, wish to do all I can to limit this type of behaviour in all workplaces, no matter how unique they deem themselves. For my part, I’ll help train managers to recognize their responsibilities and duties in eliminating these examples and I’ll train investigators to ask themselves just what they will do when faced with cross-examination related to their investigative techniques and conclusions.

Dylan Hill
April 22, 2014

Different Day, Same Story

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How some dynamics are common and how we can avoid the same mistakes

The Case

Mr Gene drove a delivery truck for a parcel service and was terminated for time theft. Upon his termination, Mr Gene filed a number of allegations with the employer, all relating to actions he deemed to be harassment and discrimination on the basis of his religion. Mr Gene filed a grievance related to his termination and what he said was a failure on management to deal with the harassment and discrimination he was facing.

The behaviour alleged included his vehicle being tampered with (grease on his steering wheel), his keys being taken, anti-Semitic graffiti being written on his vehicle, and anti-Semitic jokes and comments being made to him. The nature of the allegations and their scope expanded between the time he informed the company of his complaint and the hearing date.

Some Details

Mr Gene was called into a meeting to discuss certain gaps of time in his work day. Mr Gene was unable to explain, to the satisfaction of management, a substantial period of time in which no work appeared to have been performed. He was terminated.

Following the meeting Mr Gene told Mr Goodfellow that he felt he was being discriminated against and treated unfairly. According to Mr Goodfellow, Mr Gene was rambling and could not be specific about what had occurred. Mr Goodfellow considered this a very serious issue and asked Mr Gene to put the information in writing. Mr Gene provided Mr Goodfellow with a one-page letter briefly outlining his allegations. This letter bore little resemblance to the grievance filed two months later.

The Union immediately grieved the termination and the parties resolved the matter with Mr Gene accepting a five-day suspension. Mr Gene remained off work on “stress leave” and Mr Goodfellow began an investigation into his complaint.

Mr Gene testified that he found words such as “lazy Jew” and “go back home” written in the dust on his work vehicle “a couple” of times. Mr Gene said he reported the occurrences to his supervisor, who failed to take any action.The company did not call the supervisor to give evidence at the grievance hearing.

Mr Gene testified that there were a number of jokes made by co-workers about the Holocaust and that he reported those jokes to Human Resources. Mr Gene said that he had not provided the names of those responsible because he still had to work with them. Human Resources pledged to place someone “undercover” to investigate. Mr Gene never heard back. The company did not call the Human Resources member to give evidence at the grievance hearing.

There were a number of other similar incidents, where issues were vaguely reported, no action was taken and the company did not call the witnesses to give evidence.

The Company Position

The company maintained that the complaints were without merit and in at least one case malicious. It submitted that they were nothing more than the product of an effort by Mr Gene to initially prevent, and later to overcome, his discharge. The company submitted that they had investigated the complaints upon becoming aware and had dealt with them appropriately. The company submitted that they received notification of the complaints, most of which were historical after the fact. The company argued that Mr Gene’s evidence should be seen as self-serving or fabricated.

The Company’s response to their investigation

The company resolved to increase training on the Anti-Harassment policy at a number of levels. Further, in the findings the company stipulated that Mr Gene should bring any other incidents immediately to management’s attention for action.

The Finding

The arbitrator found that some of the allegations Mr Gene presented were true and that he was the victim of at least some religious-based harassment at the hands of his co-workers, though not at all to the extent that he alleged. The arbitrator did not agree that all of Mr Gene’s evidence be set aside based on the company’s arguments and he examined each one. Although the arbitrator found Mr Gene’s evidence to be often vague, frequently imprecise, and sometimes shifting he accepted certain aspects of Mr Gene’s information. The arbitrator described Mr Goodfellow as dedicated and committed in preparing the report for the company on the allegations but faulted the company in not calling the witnesses that Mr Goodfellow interviewed to give evidence at the arbitration.

The arbitrator spent a great deal of space in the award weighing the testimony of Mr Gene. He described it as “all over the map”, “very confusing to deal with” and “vague”. An example given was that Mr Gene seemed content to offer evidence that the company “gave him a hard time” as fact, without detail and could not or would not provide details when questioned.

The arbitrator found that the evidence of the writings in the dust and the “jokes” was uncontradicted and that further, it was uncontradicted that Mr Gene brought these issues to management and that nothing was done. The fact that none of the witnesses were called to give evidence weighed heavily. The arbitrator found that the evidence submitted by Mr Goodfellow in  his report, of his conversations with those people, was of no assistance. He concluded, “It is hearsay evidence and is insufficient to overcome the effects of the grievor’s direct testimony.

The arbitrator also found that the company’s reliance on the fact that Mr Gene chose not to name the people making jokes did not assist the company. He ruled, “It was incumbent on the Company to assure the grievor that there was absolutely no reason for any such concern and that all matters would be investigated and dealt with thoroughly, appropriately, and with no fear of reprisal.”

The arbitrator made some comments about the posting of company policies on Anti-Harassment and the training. He stated, “…the Company also cannot take comfort in the written policies against harassment, and in favour of diversity, that are posted in the workplace…and about which employees are informed at the point of hiring. Policies exist to be enforced and if they are not – or if the enforcement is limp or tepid or goes unrecorded – then such policies are essentially valueless.”

The arbitrator declared that the company breached the Human Rights Act and the collective agreement by failing to provide the grievor with a discrimination and harassment free workplace with respect to certain aspects of the complaint, but not all.

Some Lessons

Two points of this case struck me; first, the lack of preparation by the company, and the error in strategy at the grievance hearings, in not calling crucial witnesses to their case. This led to uncontradicted evidence and ultimately contributed to the unfavourable finding. Second, this is another example of the huge burden employer’s have, to ensure the workplace is free from harassment and discrimination. It is not good enough to have a policy and tell people about it; we must vigorously enforce the standards set.

Yet again, we see the dynamic of an employee reporting an incident, being reluctant to provide all the details (present the names of those responsible) and the company’s attempt to rely on that as creating a condition where they could not take action. Clearly the arbitrator disagreed, and that contributed to the unfavourable finding in this case.

Have some thoughts on the case? Please share them with us @HillAdvisory on twitter or on our FaceBook page.

Dylan Hill
March 9, 2014

No One Can Do Everything, But Everyone Can Do Something

I am  working on an investigation right now that involves a person in a position of power over minors. This person decided to send text messages to a variety of staff that were sexual in nature. He would ask staff about sex with their girlfriends, their underwear and their genitals. That sounds bad enough doesn’t it? Well, it gets worse. He did this for over 9 years…worse still, a number of people knew about it and did nothing. The list of those in the know of at least a piece of information include parents, supervisors and finally HR. As soon as HR became aware, they initiated talks with legal and ultimately an investigation. The good news? He was removed from the workplace. At least there was an appropriate response down the road – but why so much road?

Often we see things that are not right in the workplace and we let psychology take over. We begin minimizing and rationalizing and looking the other way. We do not want to be involved, so we do not get involved. We want to normalize the situation, so we act as if nothing happened. We think that we can’t make effective change, we can’t make a difference, so we don’t. That is how these things develop – that is how this is allowed to happen at work.

If we asked 100 people if this should happen at work, 100 would respond with a resounding “NO WAY”. Yet, it happens all too often and in this case was allowed to continue for 9 years!

Maybe it’s time for us all to start taking a stand or two – to start putting ourselves in others’ shoes and  wondering how what we are pretending not to see or hear may be impacting someone else. Maybe it’s finally time to stop accepting and allowing behaviour in the workplace that is reprehensible! I am not suggesting that we can individually do everything but I am certainly suggesting that we all have a responsibility to do something!