Tag harassment

Tag harassment

Sexual Harassment is Alive and Well (Unfortunately!)

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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.

Let’s Start Understanding A “Nexus”

Handling harassment cases in the workplace depends on a solid comprehension of key concepts.

I’ve been noticing a trend in the reporting of harassment in the workplace and in the investigation thereof. A lack of understanding the concept of a nexus. To begin, a definition: a connection or series of connections linking two or more things.

Seems simple, yes? No.

Some of the cases I have investigated recently have featured such logic as:

A) I am a woman (man/young/old/tall/short, etc).

B) Something bad happened to me.

C) Therefore the person that did the bad thing is sexist (ageist, etc).

Do we all see the flaw? It is a bit easier when boiled down to the essentials, but for a surprising number of people, the above seems quite reasonable.

However, could it be that the accused individual was just a bad person, doing bad things to lots of people, for a variety of reasons? I would submit that yes, of course it is possible. And that’s the problem with the above argument.

The problem is not just contained to the folks reporting harassment in the workplace, the difficulty with the logic persists in Human Resource professionals and in fact with some highly paid external consultants. I have had the opportunity to review work done by both groups and have found variations of this theme in the work.

Let me be as clear as I try to be when I write Final Reports on Harassment complaints in the workplace; there must be evidence to link concepts. You cannot simply skip over the logic in an attempt to prove causality, the logic is essential in the investigation and ultimately, the appropriate resolution of, all complaints in the workplace.

I have made it my mission to help Investigators think about and refine their craft, while doing the same with my skills. Let’s connect and improve the industry together!

Questions or comments? I would love to hear from you.

Dylan Hill



Did Sexual Harassment Lead to Dismissal?

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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.