Tag case study

Tag case study

Out of Time

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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.

A Nexus

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What is it and why do we need to establish one?

The case research this month that caught my eye is a case out of British Columbia, a Province we are excited to come visit once again in late February for a Public Workshop of Investigation Techniques. Hope to see you there! This case contains one simple argument or point to consider; is there a nexus established? In the past few years I have encountered quite a few cases like this with many professional and sophisticated employees and employers not quite understanding the point. While complex, the decision is simple and sometimes you need to focus on the bottom line when weighing evidence. I hope you enjoy the case and I look forward to any comments or questions you may have!

Ms Campbell complains that she was discriminated against on the basis of physical disability when her employment was terminated. She names three individual respondents, who were all supervisory personnel. The Employer denied the allegations and sought dismissal of the complaint, and an Arbitration was held.

The essence of Ms Campbell’s complaint stems from medical leaves associated with a knee injury she sustained. She alleges that there was a “temporal connection” with her being off work and false allegations of her poor performance.

The respondents said that Ms Campbell’s employment relationship was difficult, characterized by insubordination and failure to fulfill expectations. Investigations of Ms Campbell’s performance were often delayed until she returned to work after medically-related leave. This seemed to give a temporal connection with her return to work and the employer’s investigation of supposed wrongdoing by Ms Campbell.

The culminating incident in the employee relationship revolved around a series of meetings that Ms Campbell failed to attend, with or without notice and with or without medical support for her lack of attendance. She would often fail to show up or fail to support absences with medical documentation. Her particular issue was a knee injury.

Ms Campbell was terminated and the reasons given by the employer was exclusively based upon, and rooted in, her longstanding performance and behavioural issues and had nothing to do with any physical disability, including treatment or absences associated with her medical concerns.

Ms Campbell grieved the termination but the Union chose not to proceed with the grievance. The Union determined that an arbitrator would likely find that the employer had just cause to terminate.

The respondents say that throughout her employment, whenever Ms Campbell was faced with direction or critical feedback with which she disagreed, she would file unfounded, vexatious complaints of “bullying and harassment” against the individuals involved. Even after those complaints were objectively investigated and dismissed without foundation, Ms Campbell continued to describe the individuals involved in a critical and defamatory manner, often publicly.

The Arbitrator moved to a determination about the Complaint on the basis of submissions which involved a preliminary assessment where consideration was made as to the reasonable prospect the complaint would succeed. The threshold for such a review is low. Ms Campbell must only show her evidence is not speculation or conjecture. The requirements of a prima facie case of discrimination were recently affirmed by the Supreme Court of Canada in Moore v. British Columbia 2012 SCC 61. 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 a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice.

In this matter, Ms Campbell has shown that she was disabled, in that she was frequently off work due to the knee injury and surgery. She could also show adverse consequences, i.e. the termination of her employment. The matter that the Arbitrator had to decide was whether she has no reasonable prospect of success in proving that there was a nexus between the disability and the adverse consequences.

The respondent’s evidence demonstrated that Ms Campbell had a longstanding and significant performance and behavioural issues at work. They provided evidence that they made numerous efforts to both bring their concerns to Ms Campbell’s attention and assist her in improving the situation, without success. The respondents submitted that they engaged in a fair, and transparent process of progressive discipline in response to Ms Campbell’s persistent pattern of poor performance and unacceptable behaviour at work.

Ms Campbell had a long history of making complaints and appeals and had submitted all the documentation to support her claim to the Arbitrator. In analysis the Arbitrator was unable to find a nexus between Ms Campbell’s disability and her dismissal. As such, her claims were dismissed upon preliminary review as having no likelihood of success.

This decision touches on an interesting dynamic, especially when an employer policy is limited to objective wording and/or a complaint is filed that an employee has been subject to discipline. I speak about the concept often in my training courses: in the analysis and investigation of the evidence, has a nexus been established? Has the Complainant made a connection in the evidence between their protected characteristic and the adverse impact? Often, I find that they have not. You may as well.

A Failure to Properly Handle an Investigation Leads to a Costly Award

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Ms Jones worked in a male dominated workplace for a City in Ontario. She was subjected to years of harassing behaviours, including sexual comments and touching and after trying to deal with the behaviour for years, filed an internal complaint. The City conducted an investigation. Ms Jones was unhappy with the response and felt that she would be subject to further harassment and retaliation. Ms Jones filed a Human Rights complaint against the harasser and some of the leadership with the City.

Ms Jones had brought her complaint to Mr Williams, who agreed that the behaviour was inappropriate and that it needed to stop. However, instead of dealing with the matter, he deferred the complaint to Mr Johnson who had direct responsibility for  the employees in question. Mr Williams did not contact a Human Rights Specialist and testified that it was his view that the matter did not meet the criteria for a complaint as set out in the City’s policy document. Rather, he believed the matter amounted to a conflict between two employees that should be resolved by the Manager.

Ms Jones took the matter to Mr Johnson as instructed but as he was on vacation, it was two weeks until she was able to talk to him. When she explained her complaint, Mr Johnson told her that he had spoken to Mr Smith about that type of behaviour in the past. Mr Johnson said that if she wanted to file a complaint, she would have to get a union representative, come back and see him. Mr Johnson told Ms Jones that her allegations, if substantiated could likely end in the termination of Mr Smith and he described Mr Smith as an old school employee who was not malicious but simply did not know any better. Ms Jones felt that Mr Johnson was trying to get her to decide not to file a complaint.

Ms Jones was not satisfied with the investigation and the communication at the end and felt that the behaviour would not stop as a result. There was a further incident of touching in the workplace and Ms Jones was forced to work the night shift in order to get away from Mr Smith.

Ms Jones asked for information relating to the investigation and discipline to Mr Smith but did not receive responses. Her Union tried to get information, unsuccessfully. Ms Jones filed a complaint with Human Rights. Her complaint relied on essentially the same information presented earlier, however there were also concerns of retaliation like manipulating the overtime schedule to deny her opportunity and excessive scrutiny of her work. Ms Jones contended that her workplace had been poisoned.

A single Arbitrator heard the facts of the complaint and analyzed the arguments and precedents set forth by both the Union and the City. The Arbitrator found that Ms Jones was subject to harassment in the workplace, that Mr Smith caused Ms Jones’s work environment to be poisoned on the basis of her sex, and that she was subject to reprisals after filing a complaint.

The Arbitrator turned to the question of the City’s liability and found that as a person in a position of authority, Mr Smith was part of the “directing mind” of the organization, such that his conduct with respect to Ms Jones effectively became that of the City. Consequently, the Arbitrator found that the City was responsible for Mr Smith’s behaviour. The Arbitrator also concluded that Mr Smith caused Ms Jones’s work environment to be poisoned, while he was a member of management, and found the City liable for the poisoned work environment.

The Arbitrator turned to the question of the Employer response and cited: “…Laskowska v. Marineland of Canada, supra [cited in Harriott v. National Money Mart, supra],…” for evaluation of the Employer response. The Arbitrator found that the Employer had sufficient policies but failed to properly educate the employees. The Arbitrator ruled that the Employer did not treat the complaint seriously and did not deal with the matter promptly and sensitively. The Arbitrator ruled that the investigation was flawed, in that the HRS did not interview witnesses to the events described in the complaint. The Arbitrator found that the City failed to take appropriate action to ensure that Ms Jones’s workplace would remain safe and that no further harassment would occur, namely, removing Mr Smith as her supervisor. The Arbitrator found both Mr Williams and Mr Johnson personally in breach of the Human Rights Code. The Arbitrator ordered general damages against the City in the amount of $25,000.00, as well as stipulating some training and eduction in the workplace.