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.