Tag harassment

Tag harassment

Dylan Hill
July 18, 2017

Ontario Human Rights Award Reaches $200K

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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.

Dylan Hill
May 16, 2016

Employee Terminated For Workplace Violence – Then Overturned

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How failing to pay attention to detail and a decision to terminate an employee for workplace violence combined to create an overturned decision

As a Harassment and Discrimination investigator, I often find myself conducting investigations that have similar characteristics to the case presented below. Workplace violence is one of the most frightening and damaging actions in any workplace, and it is especially important to take quick, decisive action which is based on evidence to resolve the issue and to attempt to begin repairing the damage done. A negative decision on appeal can have many impacts. The second fascinating concept involves proper progressive discipline and the concept of front line supervisors and managers dealing with issues as they arise, rather than attempting to demonstrate a pattern post—culminating incident.

*All names and other identifying details altered to protect the innocent (and not so innocent) *

This case involves two female employees (Anne and Sophie) and an interaction deemed to be a violation of the employer’s workplace violence policy. Anne worked for the employer for 10 years and allegedly had a history of harassing and bullying co-workers (more on this later). The incident involved a verbal argument which escalated to a physical confrontation in an office environment where Anne pinned Sophie in her chair (which was wedged against a wall) and refuse to cease the behaviour. A witness to the events intervened when they heard Sophie ask for help and say she could not breathe. Nothing was said to Anne and she went home. An investigation was conducted later and Anne was terminated. The union grieved the termination and an Arbitrator was assigned.

Nobody reported the incident immediately and some reasons given were that co-workers were afraid of Anne as she had been harassing and bullying them without seeming consequence for some time. They were afraid of potential retaliation. One witness said she did not want to report the behaviour as she felt it would constitute “ratting out” a fellow union member. The incident did come to the attention of management when Sheri (a leader) approached some of the workers and asked how things were going. Sheri picked up on some tension and followed it up (Well done!). 

Sophie told Sheri what happened in a lengthy and emotional conversation and also related incidents of being bullied and specifically of Anne putting her in a headlock the previous summer and of Anne deliberately unzipping Sophie’s top one day. Sheri asked Sophie to put the information in writing and assured her that retaliation would not be condoned.

The element of asking or even requiring a complainant to put complaints in writing strikes me as potentially counter-productive and potentially fraught with liability. If we wonder about potential outcomes of an employee sharing specific concerns with a leader that are prima facie breaches to any policy, much less the harassment policy, and we ask them to put the allegations in writing, what do we do with time delays, reluctance to put items in writing and even withdrawal from the process or changing information? Would a better way not be for the leader to take notes about the concerns, consult with partners, and when appropriate to the concern, initiate a more formal process and interview with the complainant to get full detail? In my opinion it is a much better path.

After some prompting Sophie provided a written statement, however it did not refer to the past bullying instances which she had reported to Sheri (now we have a problem). Sheri interviewed witnesses and obtained statements. She also interviewed Anne and read out Sophie’s statement to her. She did not provide a copy beforehand and did not give her any time to prepare a defense (contrary to the Principles of Natural Justice). Sheri did not mention the additional information that Sophie had given her orally but which she had omitted when writing it up. Anne denied the context of the situation and indicated she had simply been giving Sophie a “goodbye hug” and there was no conflict whatsoever.

The arbitrator preferred the evidence of Sophie and the two witnesses to that of Anne’s. There were other elements to the case in which the arbitrator illustrated points wherein Anne’s credibility and the veracity of her testimony was challenged significantly.

The employer provided the rationale for Anne’s dismissal as: the incident of workplace violence, as well as “unprofessional conduct unbecoming” of her position and relied on various complaints about her behaviour in the past several years. It is important to note, the arbitrator stated, that although Anne had been counselled and spoken to about her interactions with others, in the two years preceding her discharge Anne was never disciplined as a result of her behaviour, conduct, or attitude towards other employees.

The employer relied on the one incident and also referred to a general awareness of previous incidents but did not in some cases have all the relevant information about those events and in the letter of dismissal did not rely on the past incidents. The arbitrator accepted the union’s position that the past history could not be relied upon to constitute cause as the proper progressive discipline had not been done.

The arbitrator conducted a point by point analysis of the dismissal decision as it related to the points made by management in the letter of dismissal and found that many of the grounds did not have the proper underpinning (ie formal action and documentation, and lack of proper process). The arbitrator ruled that the elements were not sufficient for dismissal.

In hindsight, I am sure we can all see that proper disciplinary processes could have played a role and could have prevented a finding that had an employee who had harassed and bullied others, (up to and including physically) in the workplace from being re-instated. This costly process could have been avoided entirely with leaders who are committed to leading and are provided the skills and understanding of scope as it relates to managing workplaces appropriately. 

The termination was overturned, however, the arbitrator found Anne should not be reinstated to the workplace as she was likely to repeat the behaviour. The arbitrator wrote a well-reasoned opinion in justification of this conclusion, including that Anne steadfastly denied any wrong-doing and that her testimony had so many conflicting statements and was so totally self-serving.

In the end, the parties were instructed to negotiate an appropriate financial settlement, in lieu of re-instatement. Those direct costs can be added to the pile of indirect costs that were incurred by the mis-management of this problem employee in the workplace for the better part of 10 years.

What are we to learn from cases like this? For me, it re-enforces a strongly held belief; address problems honestly, and appropriately at the time with a steady gaze fixed to the leadership of the entire organization. Inform every conflict decision with this philosophy and that will get you half-way there. I’d love to hear what you think, you can connect with me all the usual ways!

 

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Dylan Hill
March 9, 2016

Racist Comments Are Wrong – But Still Happen At Work

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How one Employer in Alberta recently handled an investigation

In preparation for our upcoming workshop in Alberta, I thought I would research an Alberta case this time around. As always, it provides great learnings for the Investigator in all of us. I look forward to meeting those of you attending our sessions and getting into the business of asking questions!

This case occurred in Edmonton and was heard by an Arbitation Panel. The Arbitration flows from Mr Smith’s grievance related to his dismissal. Mr Smith was a heavy duty mechanic for about two years prior to his dismissal for making disparaging and racist comments to a co-worker. Mr Smith denied making the comments. Part of the agreed statement of facts was reference to Mr Smith having undergone the Employer’s Respectful Workplace training and reference that he was provided documentation to that effect.

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The incident that led to Mr Smith’s dismissal was documented in email amongst the management team of the employer and details the statements Mr Smith is said to have made to a fellow employee which include: referring to him as a “monkey”, and saying “I am going to use your black skin to wrap around my steering wheel”. The statements were witnessed by two co-workers, over the course of a few days and on one occasion a co-worker attempted to intervene.

Interestingly, both Mr Smith and the target of the comments, Mr Jones were fairly recent immigrants to Canada. Mr Smith had immigrated from Romania and Mr Jones had immigrated from Sudan. Both men had learned English as a second language before they began working together. The relationship between the two seemed fine before the incident. Mr Smith had some extensive dental work done and returned to work. Mr Jones thought that perhaps Mr Smith was being affected by some medication he was on as Mr Smith started making racist and offensive comments to him. Mr Jones did not know what to do and was upset in the workplace.

In his testimony Mr Smith referring to being at the dentist and recovering from anesthesia. He referred to a discussion involving animals in Africa, but denied calling Mr Jones a “monkey”. He also denied swearing at him and referring to his mother in a derogatory fashion. He testified that he had made a reference to Mr Jones’ skin being soft and compared it to a steering wheel leather. He said that discussions on Mr Jones’ skin texture were not uncommon and he did not believe the were offensive. Mr Smith asked the Arbitration panel to check with witnesses, who he was sure would support his version of the events.

WItness testimony confirmed Mr Jones’ testimony and directly contradicted Mr Smith’s. The employer interviewed all involved. It was noted that in some of the witness testimony, there was no reference to the word “monkey”. The witness indicated that he had not been shown a copy of the statement that he gave and was not given a chance to review the content.

Upon speaking to witnesses, the employer’s representatives determined that the comments were made, that Mr Smith denied them and did not seem to appreciate the gravity of his actions and they recommended termination.

During the interview with Mr Smith, the investigator was asking questions and typing essence responses into a computer as Mr Smith was speaking. Mr Smith was agitated and refused to answer the investigator’s questions if she kept typing. Eventually another investigator took over and asked the questions. The meeting ended with Mr Smith no longer answering questions or making eye contact.

A few lessons to be learned here. First, it is solid practice to have a witness review the statement generated from a formal interview. Not only does this provide a much clearer version of the evidence, it also provides an agreed upon document that can be tendered as evidence should a case be appealed to another jurisdiction, which it was here. Second, it seems the investigators may have shied away from using the offensive terms that were spoken in their notes. While this may not be the case, it brings to mind the tendencies we can all have, to “soften” or be overly general with respect to offensive evidence. Generally, if a term is used and will form the basis of a decision on employment status, it is better to include the exact phrasing rather than place your own “lens” in the way. In this case, the lack of inclusion of the phrase (although the witnesses recall stating it) is used by the Union counsel to attempt to overturn the employers decision at Arbitration. Third, the issue of typing while trying to conduct an interview and the effect of the investigator upon a person being interviewed. Quite simply, in my opinion, the most important thought process for a successful investigator is not “how am I going to take notes” and is more along the lines of “how is my process working (or not) for this particular witness, at this time and is there any way I can change what I am doing to help with the process”. The argument that a person being interviewed is being “uncooperative” or “disrespectful” happens all too often. The core of our practice and teaching is learning to overcome these manners of thinking and investigating in order to present a solid case finding, backed by the evidence, which is not influenced by bias or pre-conceived notions, and that can  stand up to third party scrutiny. There are many working parts.

In the end, the arguments from the Union counsel were not quite enough, in a majority decision, the Arbitration panel upheld the employer’s decision.

While I agree with the ultimate disposition of this case, it strikes me that several of the hurdles the employer counsel had to navigate could have been mitigated with a more thorough process from the beginning. There’s just no telling which cases will go to appeal, so our motto is “treat each case as if it might”.