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Dylan Hill

July 18, 2015

Sexual Harassment is Alive and Well (Unfortunately!)

After years of declining representation in Hill Advisory caseloads, 2014/2015 has seen a spike in high level sexual harassment investigations. We have seen similar in popular media and in our ongoing research in the area. Here is a recent case with some details that are not that different from some we have investigated recently.

Sally and John both worked in a Health care facility as Nurses. The complaint comes from Sally, against both the employer and John in relation to actions John took before and after their consensual extra-marital affair. Sally and John had an affair for over a year, inside and outside of the workplace. At the end, Sally was diagnosed with some mental health concerns, her husband found out about the affair and some of the details. Sally’s husband contacted the employer with a complaint and a few days later called back and alleged that John had sexually assaulted his wife in the workplace. When Sally was contacted by the employer, she said that she did not wish to file a complaint pursuant to their respectful workplace policy. A few days later, the employer was provided with a statement of complaint and Sally filed a Human Rights complaint. The employer conducted an internal investigation.

The tribunal dealt with a number of questions, including outlining some of the facts, deciding on a motion to anonymize the parties and an application by the employer to dismiss the claim. In the consideration of the above, the tribunal attempted to parse the actions that happened before, during and after the consensual relationship to determine the merit of the complaint.

Some of the incidents before the relationship were:

1. John walked up behind Sally and put his hand in her back pocket at work. She asked him to stop and he did.

2. John pulled Sally onto his lap when she was walking by him. He did not let her up right away but eventually did so.

3. John sent Sally numerous chat messages, text messages, Facebook messages which were “flirty” at first and progressed to outright propositions.

After approximately three years of behaviour like this which occurred with varying frequency and intensity, (and which Sally did not report), the relationship turned more consensual. Evidence of the consent was provided by both parties through chat logs etc. Sally told John that she had sexual dreams about him, and that she had suggested to her husband that John join in their sexual activities.

However, throughout their “consensual relationship” Sally alleged that there were several incidents when John subjected her to unwelcome sexual behaviour like exposing himself to her in a locked office and “unwanted sexual intercourse” in an office at work. Their relationship continued and she invited him to her house in the two weeks that her husband was away, where they engaged in sexual intercourse repeatedly.

Sally went on a holiday with her family that summer and when she returned, she told John that they had to stop seeing each other. Sally said that John would not stop and continued to aggressively pursue her. They met up one more time and had sexual intercourse. Shortly thereafter, Sally confessed the relationship to her husband and he contacted the employer to make them aware of his concerns. The employer had no previous knowledge of the relationship or the allegations of inappropriate behaviour prior to the commencement of the relationship.

Shortly after telling the employer that she dd not wish to file a complaint pursuant to their policies, she filed a complaint with the Human Rights Commission and forwarded a statement to the employer. They decided to conduct an internal investigation and at the end made an application to dismiss the claim.

The Tribunal considered the matter of timeliness (must be filed within six months of the alleged contravention or represent a pattern with the last instance within that timeframe). The Tribunal considered their ability to accept out of time evidence as well. The evidence presented was from 2010-2013 so was clearly out of time. Sally made arguments that the employer did not handle the situation properly, that they should have known and that her mental diagnosis contributed to the time delay. The Tribunal concluded that they could find no timely acts of the same character as others, so found that Sally’s allegations did not describe a contravention of the Code. The Tribunal further considered other factors Sally presented in her argument that the Tribunal should make an exception regarding the timeliness of the complaint, but ultimately ruled they would not exercise their discretion.

All of the cases we summarize include many factors and interesting points to learn from. What strikes me about this case is the difficulty in dealing with a scenario of a mutual relationship that ends. It seems many employers would prefer these types of complaints to stay outside of their policies and responsibility when things go wrong, but it seems to be an easy bar to cross to link these cases to the workplace, therefore placing it firmly in the employer’s lap.

Of course, the most striking aspect of this case is the level of impropriety existent in our workplaces still. No matter where the facts eventually settle, are we really asked to accept behaviour like this anywhere, much less our workplaces? The area of sexual harassment of this level was rampant when Ms Cam Hill started our company 25 years ago, yet here I am conducting investigations into this re-emerged trend.

Cam Hill

May 17, 2015

Why A Thorough Investigation You Ask?

Let’s look at a few facts that can colour your investigation work shall we?

You don’t have enough time in your day to do all the work in front of you now – to do what’s expected of you.
Your boss doesn’t understand the importance of a thorough investigation and so demands ongoing job responsibilities be met, while you’re attempting to investigate.
You wish someone else could handle this investigation work, for it makes you uncomfortable.
You don’t know if the complaint of harassment fits under your corporate policy definition.
There’s a complaint – that represents a problem that has to be dealt with right now before things get worse so let’s get in there and get the job done NOW!! Complete the job, finish the job, NOW! Hurry, Hurry.

Do any of these statements resonate with you? So often a corporation will rush through an investigation because of a variety of reasons, reasons they believe are valid, reasons that are more important than conducting a thorough investigation.

Time after time we see investigation work that is incomplete, rushed or simply inadequate because the investigator has not followed through on a line of questioning; has not interviewed all the pertinent witnesses or has not traced all the evidentiary material.

An incomplete (non-thorough) investigation can cause havoc to a corporation not to mention the primary parties involved in the dispute. What can happen as a result could be a variety of reactions from:

one or both of the primary parties resigns from the corporation – thereby losing a trained, valuable resource, one that requires replacing and retraining
the conclusions of the investigation are erroneous – and one of the parties moves the complaint outward into another jurisdiction and the corporation loses control of the outcome
the investigation is non-conclusive – leaving both primary parties unhappy, stressed and angry – usually directed at the investigator and the corporation
the wrong party is found to be at fault – opening the door for legal action or again, action taken outside the corporation’s jurisdiction

There are many negative outcomes to pursuing an investigation and then not thoroughly completing it, dotting all those i’s – crossing all those t’s. People’s lives can be negatively impacted in a major way. All of that and more rests on the investigator’s shoulders – can you bear the burden? Can you take the time to do a thorough job? Can you ensure the work you do is excellent? Can you stand tall knowing the work you do is important to yourself, the parties involved and your corporation and take pride in a job done thoroughly? Only you know the answer to these questions – until they are tested in another jurisdiction – then many others will know the answer too.

Dylan Hill

March 28, 2015

The Building Blocks of an Investigation

One of the most important factors to a complete and thorough harassment investigation is the statement. We refer to the statements as the foundation of the report because that is the first place (besides your notes) that you have recorded and presented the evidence of the case.

A properly written statement can do many things for an investigation. They provide a framework for the case in that statements are the raw material of the case. Statements give you a structure on which to base your questions for witnesses and they can also point out questions or gaps of information that the investigator needs to fill before the end of the interview or investigation. Statements are what are left at the end of the interview process that you have the witness sign and take a copy of. They are what you base your conclusions on.

You would have a difficult time indeed bringing in a conclusion to a case of harassment without the evidence presented in the statements and the final report. There have been countless times that we have seen reports that attempt to make a conclusion based on a lack of evidence in the statements and the report. These conclusions are unfortunately the ones that are vulnerable to challenge.

In conducting training across the Country we have learned that statement writing is an area where most harassment investigations need work. People seem to have trouble with taking information they have gathered and presenting it (in the statement and the report) in a clear and complete manner. Let me state it again, poor statements lead to poor reports. If the evidence is presented in a poor way in the final report that can lead to being unable to reach a conclusion based on evidence even though the investigator asked all the ‘right’ questions, and maybe even took ‘perfect notes’. The evidence is just simply not there unless it is presented in a clear manner.

Have you had a witness tell you that they are surprised you were able to take their information and make it make sense? Are you able to read the final report and have all your questions answered and your conclusions make sense to your boss? Have you been asked to redo witness interviews and/or entire investigations? Does the witness ask for excessive changes? These are all signs that can help you asses your statement taking process.

We do not believe that there is any perfect roadmap for writing a statement but we do have some tips for statement writing:

1. Use a standard format (the same one every time).

Write the statement in first person present tense.
Do not change the tense of the statement.
Do not change from one person’s version of events to your own thoughts.
Use paragraphs to separate thoughts and incidents.
Use formal names – Never first names.
The statement is one big quote – so additional quotation marks are not needed.
The presentation of evidence and conclusions is for the Report – not the statement.

At Hill Advisory we follow the same pattern to format statements. We do this because we believe that it keeps our process safe. We spend the majority of our time writing statements and final reports and we understand the care and diligence required for the task. We hope you have now been provided with some new thoughts in this most important of areas.