Tag harassment

Tag harassment

Dylan Hill
April 22, 2014

Different Day, Same Story

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How some dynamics are common and how we can avoid the same mistakes

The Case

Mr Gene drove a delivery truck for a parcel service and was terminated for time theft. Upon his termination, Mr Gene filed a number of allegations with the employer, all relating to actions he deemed to be harassment and discrimination on the basis of his religion. Mr Gene filed a grievance related to his termination and what he said was a failure on management to deal with the harassment and discrimination he was facing.

The behaviour alleged included his vehicle being tampered with (grease on his steering wheel), his keys being taken, anti-Semitic graffiti being written on his vehicle, and anti-Semitic jokes and comments being made to him. The nature of the allegations and their scope expanded between the time he informed the company of his complaint and the hearing date.

Some Details

Mr Gene was called into a meeting to discuss certain gaps of time in his work day. Mr Gene was unable to explain, to the satisfaction of management, a substantial period of time in which no work appeared to have been performed. He was terminated.

Following the meeting Mr Gene told Mr Goodfellow that he felt he was being discriminated against and treated unfairly. According to Mr Goodfellow, Mr Gene was rambling and could not be specific about what had occurred. Mr Goodfellow considered this a very serious issue and asked Mr Gene to put the information in writing. Mr Gene provided Mr Goodfellow with a one-page letter briefly outlining his allegations. This letter bore little resemblance to the grievance filed two months later.

The Union immediately grieved the termination and the parties resolved the matter with Mr Gene accepting a five-day suspension. Mr Gene remained off work on “stress leave” and Mr Goodfellow began an investigation into his complaint.

Mr Gene testified that he found words such as “lazy Jew” and “go back home” written in the dust on his work vehicle “a couple” of times. Mr Gene said he reported the occurrences to his supervisor, who failed to take any action.The company did not call the supervisor to give evidence at the grievance hearing.

Mr Gene testified that there were a number of jokes made by co-workers about the Holocaust and that he reported those jokes to Human Resources. Mr Gene said that he had not provided the names of those responsible because he still had to work with them. Human Resources pledged to place someone “undercover” to investigate. Mr Gene never heard back. The company did not call the Human Resources member to give evidence at the grievance hearing.

There were a number of other similar incidents, where issues were vaguely reported, no action was taken and the company did not call the witnesses to give evidence.

The Company Position

The company maintained that the complaints were without merit and in at least one case malicious. It submitted that they were nothing more than the product of an effort by Mr Gene to initially prevent, and later to overcome, his discharge. The company submitted that they had investigated the complaints upon becoming aware and had dealt with them appropriately. The company submitted that they received notification of the complaints, most of which were historical after the fact. The company argued that Mr Gene’s evidence should be seen as self-serving or fabricated.

The Company’s response to their investigation

The company resolved to increase training on the Anti-Harassment policy at a number of levels. Further, in the findings the company stipulated that Mr Gene should bring any other incidents immediately to management’s attention for action.

The Finding

The arbitrator found that some of the allegations Mr Gene presented were true and that he was the victim of at least some religious-based harassment at the hands of his co-workers, though not at all to the extent that he alleged. The arbitrator did not agree that all of Mr Gene’s evidence be set aside based on the company’s arguments and he examined each one. Although the arbitrator found Mr Gene’s evidence to be often vague, frequently imprecise, and sometimes shifting he accepted certain aspects of Mr Gene’s information. The arbitrator described Mr Goodfellow as dedicated and committed in preparing the report for the company on the allegations but faulted the company in not calling the witnesses that Mr Goodfellow interviewed to give evidence at the arbitration.

The arbitrator spent a great deal of space in the award weighing the testimony of Mr Gene. He described it as “all over the map”, “very confusing to deal with” and “vague”. An example given was that Mr Gene seemed content to offer evidence that the company “gave him a hard time” as fact, without detail and could not or would not provide details when questioned.

The arbitrator found that the evidence of the writings in the dust and the “jokes” was uncontradicted and that further, it was uncontradicted that Mr Gene brought these issues to management and that nothing was done. The fact that none of the witnesses were called to give evidence weighed heavily. The arbitrator found that the evidence submitted by Mr Goodfellow in  his report, of his conversations with those people, was of no assistance. He concluded, “It is hearsay evidence and is insufficient to overcome the effects of the grievor’s direct testimony.

The arbitrator also found that the company’s reliance on the fact that Mr Gene chose not to name the people making jokes did not assist the company. He ruled, “It was incumbent on the Company to assure the grievor that there was absolutely no reason for any such concern and that all matters would be investigated and dealt with thoroughly, appropriately, and with no fear of reprisal.”

The arbitrator made some comments about the posting of company policies on Anti-Harassment and the training. He stated, “…the Company also cannot take comfort in the written policies against harassment, and in favour of diversity, that are posted in the workplace…and about which employees are informed at the point of hiring. Policies exist to be enforced and if they are not – or if the enforcement is limp or tepid or goes unrecorded – then such policies are essentially valueless.”

The arbitrator declared that the company breached the Human Rights Act and the collective agreement by failing to provide the grievor with a discrimination and harassment free workplace with respect to certain aspects of the complaint, but not all.

Some Lessons

Two points of this case struck me; first, the lack of preparation by the company, and the error in strategy at the grievance hearings, in not calling crucial witnesses to their case. This led to uncontradicted evidence and ultimately contributed to the unfavourable finding. Second, this is another example of the huge burden employer’s have, to ensure the workplace is free from harassment and discrimination. It is not good enough to have a policy and tell people about it; we must vigorously enforce the standards set.

Yet again, we see the dynamic of an employee reporting an incident, being reluctant to provide all the details (present the names of those responsible) and the company’s attempt to rely on that as creating a condition where they could not take action. Clearly the arbitrator disagreed, and that contributed to the unfavourable finding in this case.

Have some thoughts on the case? Please share them with us @HillAdvisory on twitter or on our FaceBook page.

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.

 

Dylan Hill
July 1, 2013

Not The Sharpest Tool in The Shed

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Sadly, another example of racial comments in the workplace

Mr Sharp was employed as a teacher and a Vice-Principal at an Elementary school. He was suspended for ten working days without pay, his position as Vice-Principal was revoked, he was directed to participate in sensitivity training, and he was reassigned to a teaching position at a different school. The discipline was assessed due to a number of inappropriate racial comments he made, and his prior discipline for inappropriate comments was taken into account. Mr Sharp did not attend the Board meeting set to review the discipline but later grieved the discipline and a hearing was held.

At the time of the investigation of the comments by the employer, Mr Sharp did not provide any explanation or response to the allegations. The majority of the allegations centered around racial comments he made with reference to a African-Nova Scotian teacher (Ms Neil). The letter of discipline given to Mr Sharp detailed a number of allegations. Mr Sharp was reported to have said “would you like light brown construction paper, dark brown, or black like you” in response to Ms Neil’s request for some supplies. He also made the comment that he thought Ms Neil would like the colour the gym had been painted, “because it’s black like you.” About a month later Mr Sharp was reported to have mimicked an ape or monkey while scratching himself on a doorway, smirking and looking directly at Ms Neil. That same month, Mr Sharp was said to have walked by Ms Neil’s door repeatedly while whistling the tune to a song Titled “Brown girl in the ring”. Mr Sharp was said to have brought a vial of dark liquid to the staff room and commented that the liquid was black, like Ms Neil in front of a number of other teachers.

Through the investigation process, additional information came to light regarding Mr Sharp. It was reported that Mr Sharp paged Ms Moore (a teacher) to the office and when she arrived and asked “did you want me”, he replied, “Oh yes, badly”. Ms Moore took the comment to have a sexual connotation. It was reported that he made other inappropriate comments to Ms Moore about her relationship with her husband.

Ms Neil

Ms Neil testified to the specifics of the allegations against Mr Sharp. She testified that the comments upset her and stated she felt degraded and could not understand why someone would make such comments. Ms Neil testified that there were a number of peers present when Mr Sharp made the comment about the vial of liquid and described their reactions as “everyone just hung their heads.” She testified that she was unsure what to do with the situation because she felt she would not get support from the staff. She felt that some of the staff members were shunning her following the incident. She testified that when she stayed for lunch at school, no one other than two teachers would sit next to her.

Board Hearing

The Board met per policy for a discipline of this nature to consider whether it was justified. Mr Sharp had the right to attend or to have a representative attend. He chose not to attend. A member of the Board knew that Mr Sharp intended to submit a letter and a call was placed to Mr Sharp. The letter was brought into the meeting.

The letter appeared “hastily prepared” and was unsigned. Several Board members did not even want to consider the letter. They felt that Mr Sharp had taken “absolutely no responsibility” for any of the allegations. In the letter as an example, Mr Sharpstated “…if I was whistling that particular tune there was no intent to make (Ms Neil) feel uncomfortable.”

After much discussion it was decided unanimously that Mr Sharp would be suspended without pay until the end of the school year which was approximately 3 months.The Board felt that 10days was a slap on the wrist and that the behaviours and previous discipline warranted a greater sanction.

Appeal and Defense

Mr Sharp testified and attempted to refute some of the allegations against him at the hearing. He said that he had a good relationship with Ms Neil and said they had spoken of personal matters.

Mr Sharp testified that he could not recall making the comments related to the colour of construction paper. He denied making the comment about the colour of the gym although he further stated, “such a comment could easily be misconstrued.” Mr Sharp said that someone told him the vial of liquid was likely hash oil and when he asked why they said that, the response was “because it is black.” He testified that he replied, “(Ms Neil) is black but we don’t call her hash oil.” He testified that he did scratch his back on doorways, but denied there being any mimi cry of a monkey.Mr Sharp testified that he probably did whistle the song but denied that it was racially motivated.

Mr Sharp testified that the response to Ms Moore of “oh yes, badly” held no sexual connotation but was reference to wanting to speak to that teacher badly.

Mr Sharp stated that he had no idea that his lack of attendance at the Board meeting would be held against him. He stated he thought there was an agreement between the Union and Management regarding the discipline and said he was devastated when the suspension was significantly increased by the Board who had not even talked to him.

Award

The Arbitrator considered the authorities provided by counsel and additionally considered a case heard by the Supreme Court of Canada with respect to the definition and impact of sexual harassment, “…which in many respects can be considered analogous to racial harassment.”

The Arbitrator turned first to the comments made to Ms Moore. She noted that Mr Sharp did not deny the comments but provided different context. She found “In any event, both comments were insensitive, inappropriate, too familiar and un-welcome. I am satisfied that they justify some discipline.” The Arbitrator stated she would set the discipline for the comments at minor in the absence of other actions.

The Arbitrator turned to the incidents involving Ms Neil. After considering the specifics of each incident the Arbitrator noted the following: “It is clear in the law of discrimination that a perpetrator need not have discriminatory intent,if the result of the action or conduct is itself discriminatory….such conduct cannot be excused on the basis that no harm was intended.”

Mr Sharp was found guilty of misconduct.

The Arbitrator turned next to the question of discipline. She concluded that the Board’s response was excessive. The Arbitrator addressed the issue of the un-signed letter that the Board found to be indication that Mr Sharp was not taking the issue seriously. She accepted Mr Sharp’s evidence that he had problems with his computer and was working on editing the letter with the Union who then sent the letter to the Board. That explained why the letter was unsigned. Mr Sharp had also notified the Board prior to the meeting that he would not be in attendance.

The Arbitrator reinstated the discipline that was originally imposed.

 

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