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Dylan Hill

October 16, 2017

Out of Time

Two cases which illustrate the reasoning applied when a Human Rights Tribunal considers whether a complaint was filed too late:

Case 1:

In this case, the Human Rights Tribunal considered the timeliness of a complaint filed, alleging discrimination in employment on the basis of sex (harassment). The employer denied the discrimination and applied to dismiss the compliant on several grounds. The allegations were serious in nature, including sexual innuendo, personal questions, name calling, jokes and comments about other women, as well as unwelcome physical contact. The complainant alleged that despite a number of reports and complaints, the employer took no appropriate action. The complainant alleged retaliation as well to the extent that she required extended medical leave. She filed a written internal complaint in January 2014. She was not provided with the report, no corrective action ensued and she was not provided with accommodation to return to work safely. The complainant indicated that she was dismissed in September 2014.

The employer provided evidence as to the external investigation conducted and offers to share the report of the internal investigation (subject to confidentiality provisions), which the complainant refused. They submitted that the allegations were found not substantiated, and that the complainant had been asked to return to work, yet did not return.

The complainant and the employer submitted arguments for their positions on whether the case should be accepted by the Tribunal as the allegations fell outside of the 6 months time period stated in the Code. The analysis of the Tribunal centered around s. 22(3) of the Code, which states: “If a complaint is filed after the expiration of the time limit referred to in subsection (1) or (2), a member or panel may accept all or part of the complaint if the member or panel determines that: (a) it is in the public interest to accept the complaint, and (b) no substantial prejudice will result to any person because of the delay.”

The finding was that the complaint was about 7 months late-filed. One of the complainant’s arguments in the late-filing was that she was pursuing other avenues, and when those avenues did not provide resolution, she filed with the Tribunal.

The finding was that the complainant should have filed with the Tribunal in time and the matter could have been deferred pending the outcome of the other process. Further, the Tribunal found that allowing the complaint forward would represent prejudice toward the employer. Accordingly, the complaint was not allowed to proceed and was deemed as filed out of time.

Case 2:

In this case, timeliness was also considered, but a very different outcome occurred. The complainant alleged sexual harassment during the term of her employment which ended on October 24, 2016. The complainant initially filed her complaint with the Human Rights Commission of another area, as the company was based there. Once she moved, she made inquiries at the Tribunal about the filing of her complaint and she filed a complaint in that area in April 2017.

The Tribunal’s analysis centred around the same section and considerations as with case 1. The case was filed May 8, 2017 and the last alleged discrimination event occurred on October 24, 2016.

In the analysis, the relatively brief length of delay weighed in favour of accepting the late-filed complaint. The complainant also noted medical concerns which delayed her finding, and which were a result of extreme harassment and assault in the workplace. The Tribunal found that the reasoning for this concern was not sufficient by itself to justify a delay in filing. The complaint was complicated as it involved two jurisdictions, which had vastly different filing deadlines. The Tribunal concluded that this attracted the public interest in allowing the complaint to proceed.

Next the Tribunal turned to the question of prejudice and concluded that no substantial prejudice would result to the employer due to the delay and the complaint was allowed to proceed.

I became interested in these cases when doing research in my area because of the difference in the outcome. I also noted reference to different late-filing times from Province to Province, something which we should all be aware of. I was also interested in the balancing of interests that the Tribunal does through the case law and the reasoning of an issue. Late-filing timelines are in place to ensure that those who have had their Human Rights denied may seek remedy in a timely manner. Also, employers can be assured that there remains an impetus for complainants to pursue remedy as quickly as possible, thereby helping every organization move forward with providing a workplace that is free of harassment and discrimination.

Dylan Hill

September 2, 2017

Fired for Spreading Pornography in the Workplace

.. yet appealing the decision?

Mr S worked for the Province of Manitoba for over 30 years and was terminated following an investigation that addressed inappropriate computer usage in the workplace. He grieved the decision to terminate, though he did not dispute the substance of the allegations relied upon in the decision. The evidence clearly established that Mr S was using his office computer for inappropriate purposes, principally involving the accessing, receipt and dissemination of pornographic material to persons both within and outside the employ of the Province.

I used to see cases like this in the workplace quite regularly, during that relatively distant time when the Internet and computer connectivity at work was new and novel. It was often argued that people did not know any better or were not aware that the computer systems constituted the property of the employer and that the policies of the employer applied. I have not seen many of these cases lately, but as this decision comes from 2014 and 2015, and refers to cases of a similar nature in the Province; clearly they are still occurring.

The Union did not dispute that Ms S’s conduct justified a disciplinary response by the employer, however they argued that some lesser sanction should be substituted. Mr S’s behaviour constituted hundreds, if not thousands of offensive messages including nudity and sexual activity, lewd jokes and other material. It occurred for at least 24 months. Some messages were particularly upsetting to management upon review; messages which were joking, negative and sarcastic remarks about the work government employees do. The employer had investigated 5 employees for improper computer use and the remaining 4 had retired or been allowed to resign. Mr S was not provided that opportunity.

Mr S was called to a meeting, and he said he did not know what it was about. The employer questioned him about the computer use and then left the room. Mr S was presented a letter shortly thereafter that had obviously been prepared ahead of time and which terminated his employment. The employer indicated that they would have accepted Mr S’s resignation at the meeting if he would have offered it, but he did not.

Mr S also had some prior discipline on record for similar behaviour, albeit 15 years ago. In the arbitration, Mr S showed remorse but could offer no explanation to his conduct other than “I guess I got caught up in it”. He said that he was “profoundly sorry”. Mr S had not offered the employer an apology up to the arbitration, which weighed against the idea that he was truly remorseful.

The arbitrator found that the misconduct by Mr S was serious, persistent, and very troubling in terms of the nature and the volume of the material he disseminated. He found that Mr S’s actions were not “merely impulsive” as they occurred over a lengthy period of time. However, the arbitrator found that Mr S should be provided the same opportunity to resign as the others referred to above. He found “Consistency and the avoidance of unfairness require that treatment.” Accordingly, the grievance was allowed in part. The arbitrator directed that Mr S may tender his resignation.

Sometimes I read these case decisions and wonder: this individual did something at work, that he knew was wrong, had been previously disciplined for it and yet this was repeated behaviour. The employer reacted reasonably and then found themselves in an argument that ultimately changed the outcome from a termination to a resignation. What is the benefit to Mr S? Simply that now the employer has to tell other prospective employers that he resigned versus was terminated? I guess that makes some sense…..perhaps what makes more sense would be not sending pornography etc. while at work, with employer equipment at all, much less for years and years.

Dylan Hill

July 18, 2017

Ontario Human Rights Award Reaches $200K

The laws and policies dealing with harassment and in particular sexual harassment have been in place for decades in Canada, yet the problem persists in all too many workplaces. I have been researching cases and awards for some time and this is the highest award I have seen out of Human Rights. In my view, awards of $10,000.00 or less (what I typically see) are not sufficiently preventative to remedy this horrendous behaviour.

This case involves the hiring of temporary foreign workers to a workplace in Canada at a processing plant. Two complainants came to Canada from Mexico and were subjected to sexual harassment and assault. The complainants detailed numerous instances of unwanted physical contact and sexual comments, all with the threat from the respondent that if they did not comply, he would send them back to Mexico.

Specifically, the respondent in this case was the owner of the processing plant and he began taking one of the complainants to dinner, even though she did not want to go. He insisted and became angry when she tried to refuse and even resorted to threatening her with being sent home. His practice was to house a number of the temporary foreign workers in a house he owned, several to a room, with strict rules like a 10 pm curfew. He also took their passports and all visa related paperwork when they arrived and made them sign papers to authorize such (in English which they did not understand). During one of these dinner incidents, the respondent put his hand on the complainant’s leg and moved it up to her vagina while driving. His behaviours escalated to sexual assault and assault on numerous occasions. The complainant testified that she felt she had no choice but to comply due to the respondent’s constant threats.

The second complainant detailed similar incidents with the respondent, including that he kept asking for sex and telling her that sex with him would cure her physical symptoms when he was driving her to the doctor. The respondent insisted that he was the only person who could drive the workers to the doctor and he had the paperwork they required to access health care in Canada. The respondent sent the second complainant home after threatening her during an incident when he ordered her not to leave the house and she did. She refused to apologize to him and he sent her home.

The first complainant returned to Mexico after a series of assaults. The respondent continued to attempt contact with her by telephone, told her that he loved her and that he wanted to come visit her and her children in Mexico.

The two complainants spoke to the local police and reported the assaults and charges were laid against the respondent. He pled guilty to a lesser offence and never admitted any sexual wrongdoing, rather pled to assault charges.

The two claimants filed an application with the Human Rights Tribunal of Ontario along with dozens of others. The other complainants resolved their complaints before the hearing and the two complainants were the only remaining actions pending.

The Arbitrator considered a significant amount of information including the evidence submitted in other legal venues and the testimony of those involved. The respondent did not provide any evidence. After a lengthy review of the evidence and the case law, the Arbitrator awarded the first complainant $150,000.00 plus interest and the second complainant $50,000.00 plus interest for injury to their dignity, feelings and self-respect. This represents a significant increase in award amount that I have become aware of and, I think, signals a more punitive approach to the horrendous behaviours exhibited by some.