Tag case study

Tag case study

Dylan Hill
December 14, 2014

Sexual Assault and the Workplace

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When to investigate a matter that occurs outside of the workplace.

One of the questions that I get asked in training quite a bit is whether an event that happens outside the workplace should be investigated. This case illustrates some of the current thought in the area and confirms the basic tenet that inaction is seldom the appropriate response.

The Case

This case is straight-forward in some ways and not as much in others. Some facts were agreed upon by the parties. It is agreed that Bruce, a 54 year old Registered Nurse and married father of two began working with Jane, a 24 year old Administrative Assistant who was single. Bruce acknowledged that he began flirting with Jane in the workplace and he described the activity as mutual. This is where the stories begin to diverge.

The events that follow led Jane to file a report with the Police, Bruce’s arrest and the laying of criminal charges against him, and his unpaid suspension from the workplace. The employer chose to conduct a workplace investigation even though the majority of the events that led to the criminal charges occurred outside the workplace. Bruce was less than fully cooperative with that investigation. At the conclusion of the investigation, Bruce was terminated for cause and his Union filed a grievance on his behalf. An arbitration followed.

After reviewing the evidence in the case, the Crown Attorney declined to file criminal charges.

The Events

Jane testified that shortly after she began work Bruce started to “hit on her” and his actions made her very uncomfortable. Jane did not know what to do as she was new to the organization, relatively young and inexperienced and she felt intimidated by Bruce’s position in the organization. Bruce’s actions toward her increased and culminated with him slapping her “rear” on two separate occasions in the workplace within two days. Jane asked Bruce to stop the behaviour and he said that he would.

Bruce denied the allegation of physical contact but agreed that he was flirtatious with her while at work on a number of occasions.

Jane testified that a day later she finished work and headed to her parents’ home for the night (nobody else was home). It is undisputed that Bruce went to the house at the end of his shift. Jane said that he appeared at her door and she asked him how he knew where she was. He told her that he had looked up the address on the internet and he walked in uninvited. Jane said that Bruce grabbed her hand, placed it on his buttocks and asked “isn’t that hard”. Jane testified that Bruce proceeded to sexually assault her and when she begged for him to stop, he ignored her. Jane said that eventually Bruce left, but not before threatening that she better not tell anyone at work what had happened.

Bruce’s story of the night in question is different. He insisted that Jane called him at work and after a sexually charged conversation, invited him over. He claimed that all the activity in the home that night was consensual.

Jane told her boyfriend and her parents about what happened and they went to the Police and the incident was reported to the Employer. The employer had to decide whether to investigate themselves or whether to rely on the criminal proceedings. Ultimately, they decided that the events were tied to the workplace and that they should conduct their own investigation.

Jane cooperated fully with the internal investigation. Bruce did not and put up barriers for the employer to obtain relevant documentation from his licensing authority. During the arbitration hearing it came up that Bruce had some conditions placed against his license that were related to another case of sexual harassment in another workplace.

The Union objected to the fact that the employer conducted an investigation at all, contending that the events in question occurred outside the workplace, between two adults and that the police were looking into the events. The Union also objected to the length of time of the internal investigation. It took almost a year to go through the entire process, which included requesting information from Bruce’s licensing body, and a mediated settlement attempt.

Decision

The arbitrator ruled that Jane’s evidence regarding the night in question was to be preferred quoting cases from the Supreme Court of Canada (R. v. Gagnon [2006] SCC, at papa 20 & F.H. v. McDougall [2008] 3 S.C.R. 41, 2008 SCC 53, at para 49) which spoke to the assessment of credibility.

With relation to the employer investigation, the Arbitrator ruled “In my view, on the basis of the evidence before me, the employer had the right, if not the obligation, to investigate the matter, and if considered necessary, to apply discipline.” The Arbitrator commented that the behaviour began in the workplace and by Bruce’s own evidence, he was attempting to start a relationship with Jane in the workplace.

In terms of the delay in the investigation, the Arbitrator found that the employer did not act in bad faith or that there was deliberate inaction.

The Arbitrator dismissed the grievance.

Dylan Hill
December 1, 2013

Untenable Conclusions

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Internal investigations should be based on evidence or they are vulnerable to appeal

This case study was originally featured in our newsletter.

Ms Baskins worked at a factory that produced ice cream and was terminated for her actions in the workplace which included theft and dishonesty. She filed several grievances related to her dismissal and treatment in the workplace, including a claim of harassment towards her sexual orientation.

During the arbitration, the Union suggested Ms Baskins was terminated because she brought up claims of harassment in the workplace. The Employer argued Ms Baskins only brought up her claims of harassment in order to attempt to divert attention away from her actions in the workplace.

Harassment/Discrimination grievance

The gist of the grievance relates to an allegation that co-workers, including Mr Adam, subjected her to sexual harassment and discrimination based on sexual orientation. When the misconduct was eventually brought to the company’s attention, they failed to take appropriate action.

Ms Baskins testified she had been “out” in the workplace for 5 or 6 years and that her sexual orientation was common knowledge among her co-workers. She stated there were “lots” of jokes about ‘gays’ and ‘lesbians’ at work. She admitted she would sometimes participate in the jokes, provided they weren’t intended to be vindictive.

After a shut-down over Christmas, the Employer down-sized the amount of staff on the night shift and Ms Baskins testified Mr Adam made some comments, blaming her for the change and impact on the workforce. Ms Baskins stated Mr Adam began to make comments to her and do things to her to “get her goat”. Ms Baskins testified that Mr Adam made the comment, “move your a** you f***ing s**t” to her while walking behind her one day. She said she ignored him because she did not think she could accomplish anything by responding.

Ms Baskins also related a comment Mr Lee made in the cafeteria one day. Ms Baskins had told a co-worker that she did not like the chicken balls that were on the menu and she heard Mr Lee make the comment “Of course she doesn’t like balls”. She said that she told Mr Lee, “If he keeps it up there is a harassment policy here.”

Ms Baskins attempted to file a harassment complaint with the employer on a Friday and was told that she could not until Monday as the person in charge of taking complaints was gone for the day. She was, however, questioned about her absence from her work station earlier in the week and handed a reprimand regarding the issue.

Ms Baskins was able to file a complaint on Monday and an investigation occurred. In the investigative report there were conclusions that although the comments were clearly unwelcome, they did not breach the employer’s policy because Ms Baskins had not clearly told the Respondents to stop. There was a recommendation that both Ms Baskins and Mr Adam be spoken to with respect to the comments they make in the workplace, though there was no evidence that Ms Baskins had made any unwelcome comments. Finally, there was the comment, “Unfortunately it is difficult to control the behaviour of adults but we must learn to work in an environment that is respectful for both parties to work in.” Ms Baskins was not satisfied with the investigation and report and filed the grievance that led to arbitration.

Investigator Evidence

Ms Tinder testified as she was the investigator and she stated that because there were no witnesses to the s**t comment, she could not conclude that it was made. The arbitrator did not accept the position that a complaint is necessarily unsubstantiated merely because there were no third-party eye-witnesses. He stated, “Offences as serious as sexual harassment should not be treated in such dismissive fashion.” The arbitrator heard all the evidence and concluded that he could not, himself conclude that the alleged comment was made. In doing so, he considered other factors, beyond the absence of any direct witnesses. Part of that evidence was that the information given by Ms Baskins related to the incident was inconsistent in terms of content and location.

In relation to the “chicken balls” incident, Mr Lee admitted he had made the comment but said that he did not believe Ms Baskins could have heard it as she was too far away. The internal investigation made the conclusions that the comment did not offend any of the protected groupings under Human Rights, that Ms Baskins could not have heard it and that Ms Baskins had not clearly told Mr Lee that comments of that nature were unwelcome.

Under cross examination, Ms Tinder agreed that the comment was related to one of the protected groupings and that Ms Baskins had referred to the existence of the harassment policy to Mr Lee, which would be understood as being told the comment was unwelcome. Ms Tinder was asked how she could have found that Ms Baskins had not told Mr Lee the comment was unwelcome in light of this information and she said, “She didn’t directly tell him, “I don’t appreciate that comment”. Her comment did not mean stop”. Ms Tinder testified, “You need to say I don’t appreciate it and I’d like you to stop”. Ms Tinder also made comments that in her opinion, the Human Rights Code was not violated if a person did not hear a comment directed at them.

The arbitrator disagreed. He found the conclusions unreasonable and untenable. He stated, “Whether or not the grievor heard it at the time is immaterial.” He wrote, “…position that an employee may continue such statements until directly told to stop is incorrect. Taking such an absurd position only encourages harassment of those who are not strong enough to confront perpetrators. The arbitrator found that the conclusion of the report was completely inconsistent with their own policy that it will not tolerate any form of harassment.

The Arbitrator concluded that the company was in violation of the Human Rights Code.