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Dylan Hill
June 1, 2009

'Post Secondary Assault'

A case illustrating that some lessons are never learned and sexual assault still happens.

Jane was an international student who applied for a PhD program in Canada. She had a religious upbringing and had never been alone in the company of a man that was not a relative. She travelled to the City where she was to study and Mike, her soon to be instructor picked her up at the airport.

Mike was a new instructor at the University and had been born, raised and completed his education in Europe. He had a wife and two children.

Upon meeting her, Mike made several unwelcome comments about her physical appear- ance including that her legs looked pretty with high heels on. He made comments that he was surprised at her clothing as he thought she would be more modestly dressed.

Mike offered to take her to dinner to celebrate her arrival to Canada. After dinner he drove Jane to her hotel and insisted on helping her carry her bags to her room. Before leaving the room, Mike approached her, gave her a hug and kissed her on the cheek. Mike explained that was the way two people left each other in Western society. Jane was extremely uncomfortable with the contact as it exceeded what she was accustomed to based on her upbringing, but Mike was her instructor, she was new to the Country and so she did not say anything.

Mike told Jane that he would pick her up the next day to help her get established. Mike picked her up and drove her to a bank to setup a new account as well as other errands. In the course of their travels, Mike told Jane how elegant she looked and made other similar comments while staring intently at her breasts. Jane was very offended but did not say anything as she did not know what to do.

Mike created a number of situations over the course of a year where he was alone with Jane in her residence. Jane did not know what to do when they were alone, she tried to keep the conversation focused on her studies. Jane was not comfortable with having a man in her apartment with her alone, she felt she could not ask him to leave.

Jane was studying in Canada with the financial backing of her Country and as such, her family was responsible for the costs should she fail to return with a degree. Her father passed away while she was gone and so the penalty for default of payment would be imprisonment for her brother.

Mike continued to force sexual contact upon Jane, and during their second encounter, he began to kiss her, led her to her bed, and took off some of her clothing. Jane protested and Mike appeared to come to his senses. He began to apologize and left.

The next day after the incident,Mike brought Jane a couple of pairs of boots and asked her to accept one as a gift. She accepted because she thought it would be rude to refuse it.

Mike’s behaviour escalated and during one incident he took off all of his clothing and ‘lay on top of her’. Jane protested and said such contact was not appropriate because he was her instructor. He told her not to worry about it and said that nobody needed to know. Jane talked about how she valued her virginity and said she did not want to do anything and had to resort to shielding her genitalia with her hands. Mike did not listen to her objections and continued his attack on her. Mike finished his attack and got up and had a shower. He began to apologize to her and left her apartment.

Over the course of a few months, Mike orchestrated several meetings where he would be alone with Jane and even showed up to her apartment and waited in the hallway for her to return one day. She was startled when she saw him there and invited him in as she did not want to appear rude and did not want to jeopardize her eduction.

Jane did not know that she could make a complaint against Mike for what he was doing to her, either to the University or to the Police. In her Country, the blame for being alone with a man that was not a relative would fall on her. It would come down to her word against his and he was a respected instructor and she was a foreign student. In her experience,her complaint would not be investigated and would result in a loss of respect for her and her family.

Further, she was afraid that Mike would influence her studies and she would be unsuccessful in her degree. Her brother did not have the money to pay for her schooling so she knew that would result in his imprisonment.

The final incident between them ended in Mike getting naked, taking her clothes off and then ‘laying’ on her. Jane said that Mike became much more aggressive as time went on. She said he disregarded or minimized her objections and continued to try to force sexual intercourse with her. She continued to object and attempt to shield her genitalia with her hands to prevent intercourse. Afterwards, Jane noticed blood on the bed and believed she was no longer a virgin. She was devastated as in her Country that would make her undesirable and unsuitable for marriage.

Mike gave her a referral to his wife’s gynecologist when she expressed her concerns to him. She did not go as she was afraid it would be known that she was no longer a virgin. Some time passed and she began to experience physical symptoms from the stress the situation caused her. She was unable to sleep at night and her grades suffered. She finally went to the Doctor with a panic attack and told him of what had caused the stress. The doctor referred her to a Psychologist who in turn referred her to the internal University complaint process.

Some promises that Mike had made to her regarding her program went unfulfilled. Her PhD program was in jeopardy so she decided to apply to another University and transferred.

After an investigation, it was concluded that Jane’s complaint was founded, that she had been sexually harassed and assaulted and they terminated Mike. During the investigation, another incident came to light between Mike and a different international student whom he had admitted attempting to kiss. An apology to the student was accepted as remedy for that situation.

Mike and his Union filed a grievance regarding the discipline. An arbitration followed. During the course of the arbitration, Jane submitted evidence regarding Mike’s physical characteristics that indicated she had seen him naked. She provided detailed and elaborate accounts of their interactions. During extensive cross examination, some details of her testimony were somewhat shaky. Mike testified and denied any sexual contact and maintained that he could not recall much of their interactions. He claimed that she was a poor student and was making the allegations up. The Union argued that since the complaint was brought over a year after the fact, that they were outside the time frame indicated in the Policy and thus should not be considered.

The arbitrator determined that due to the extenuating circumstances, the one year time frame was not a consideration. He further found that Jane was more credible than Mike for a variety of reasons, and concluded that she had been sexual assaulted and that the discipline was justified.

Dylan Hill
September 1, 2008

'Pattern of Abuse'

Termination and Appeal in a Care Home

Summary

Gina worked as a Nurses Aide in a Care Home for 14 years. She had a prior discipline record for abusive and confrontational conduct toward co-workers. Gina was dis- charged for harassing and intimidating staff members following the latest com- plaint.

The Details

Gina was, by all accounts, an excellent service provider. She had a strong commitment to the residents and an excellent work ethic. Some of her co-workers said her high standards of care may have created conflict with other staff members on occasion.

A year ago, Gina was informally coached, received a reprimand, a writ- ten reprimand and a five day suspension over the course of 4 months. The disci- pline resulted from abusive and confron- tational conduct toward co-workers.

Gina’s father became a resident of the facility that year and the Union ob- served that she appeared to be under substantial stress during that period of time.

The matter that gave rise to the termination was a complaint by Sue, a Nurses Aide. Sue wrote a letter to management alleging a pattern of abu- sive treatment by Gina. Sue said she had raised her concerns informally with her supervisors on a number of occa- sions prior to making her formal com- plaint. Sue speculated, from the timing of the treatment, that it related to the fact that she had reported a staff mem- ber to management for abusing a pa- tient (who was terminated).

After receiving the complaint, the Manager, Paul, suspended Gina pend- ing an investigation. Paul interviewed Sue and kept notes of their meeting. The remedy that Sue wanted from the investigation was that Gina, “quit call- ing me names and bullying me and swearing and using foul language.” Sue identified others that had issues with Gina’s behaviour. Paul interviewed

Sheri who confirmed that she heard Gina call Sue a b***h. Sheri also con- firmed that Gina’s behaviour made people scared of her. Paul received another complaint about Gina before he was able to talk to her about the complaints. Kathy complained of abu- sive conduct directed towards her shortly after she had reported a staff member for patient abuse. Kathy told Paul to talk to Helen whom she said could confirm the conduct – which he did. Neither Kathy nor Helen re- ported the incident at the time as Kathy said she was scared of Gina and Helen said she worked extensively with Gina and noted that she was very good with residents but had an intimidating atti- tude with staff. Paul also received a complaint from Lisa who described Gina as a verbally abusive bully.

Before Paul’s interview with Gina, he received a hand delivered letter from her which apologized for her conduct and indicated she would do what was necessary to get her job back including, “a 100% turnaround apologizing ver- bally or written to each and every person I have hurt even those who have hurt me.” Paul was sufficiently impressed with the letter that he had discussions with upper management about the possibility of a ‘last chance agreement’ with Gina. Ultimately nothing came out of those discussions as both management and Gina did not wish to proceed.

Gina denied the allegations and said that people were “saying things about me that I know are not true but I don’t have any proof to support my side of the story.”

As a result of information gathered Paul interviewed Ashley who described Gina as rude and demeaning to her. Ashley said she tried to avoid confronta- tions with Gina in the hopes she would be left alone. Ashley also said Gina had called her at home on two occasions and described the calls as abusive and said they had frightened her. Part of one call was witnessed by her husband. The gist of the call was Gina complain- ing about her interview with Paul.

Gina was interviewed again and asked about the calls. She denied making one of them and said the other one was a joke. She said Ashley had no rea- son to fear her.

The Conclusion

As a result of the information gathered, the Employer decided to terminate Gina with cause. The conclusion was that Gina was harassing and intimidating staff members and they had no confidence she would change. It was noted that 17 staff members would not work with Gina and declined or switched shifts if they had to work with her, which created operational difficulties.

Appeal

The Union pointed to a number of discrepancies and weaknesses in the Employer’s evidence which it submitted made that evidence unreli-

able. Some of the interview notes were typed and some were not. Some were signed and some were not. The Union indicated Ashley had signed a letter of support for Gina and as such her evi- dence must be viewed with suspicion. The Union argued that the Employer’s Standards of Conduct did not set out any means to deal with harassment. The Union argued that the people who complained about Gina were not long serving employees and presumed that long term employees did not have a problem with Gina. The Union argued there was a lack of detail in the allega- tions against Gina and as such they were near impossible to reply to. They argued that a number of witnesses were not called to give evidence during the investigation and should have been. The Union argued that as the calls to Ashley occurred outside the workplace, they should not be considered in the investigation or give rise to discipline.

Decision

The arbitration panel concluded the discipline was warranted and upheld the Employer’s position. The panel concluded that it was not necessary for the employer to interview every person who might have relevant information but rather its obligation was to call enough evidence to satisfy the burden upon it. They were satisfied the Employer did so. Direct evidence provided by the witnesses at the arbitration confirmed the evidence they provided the Employer during the investigation. The panel concluded that the Union could have called witnesses to support its presumption that long standing em- ployees did not have a problem with Gina but did not do so.

The panel concluded that the Employer’s Standards of Conduct (which had been crafted with the aid of the Union) prohibited harassment inside

and outside of the workplace and so ruled that the calls to Ashley were prop- erly considered in the investigation. They also noted “This type of intimida- tion cannot be tolerated as it could have the effect of discouraging reporting of inappropriate behaviour.”

In assessing Gina’s evidence (denial of allegations for the most part) the panel concluded that her evidence was “not in harmony with the preponder- ance of the probabilities which a practi- cal and informed person would readily recognize as reasonable in the place and in those conditions”. Further they found that the written apology Gina provided to Paul conflicted with the denial of behaviour she tendered at the hearing.

The panel concluded the witnesses described a pattern of abusive conduct which was not dissimilar from conduct which had resulted in previous discipline. They concluded it was therefore not out of character for Gina and arose out of being reported to management for her conduct. The panel noted that Gina had been disciplined on 3 prior occasions but had not been convinced to change her conduct in the workplace.

Finally, the panel concluded that although Gina was an employee with 14 years of service, who had excellent skills in the care of residents, it did not mitigate against the “continuing pattern of abuse and harassment of her colleagues in a setting requiring teamwork…” They concluded there was no remorse, or acknowledgment of wrongdoing on Gina’s part and they were doubtful of her candor at the hearing and as such they saw no basis upon which they could reinstate Gina to the workplace.

Dylan Hill
June 1, 2008

'Policy But No Action'

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How the responsibility to investigate impacts the workplace.

Summary

Ed is the CEO of a medium sized family owned manufacturing company. Kyle is an employee with over 30 years of seniority with the company. The allegations are that Ed violated the company’s harassment policy by yelling at and verbally abusing Kyle. The incident stems from the timeliness and quality of improvements made by Kyle to a piece of equipment for a very important customer. Ed and Kyle were in a confrontation about the equipment and Kyle became distraught, reported the incident to his supervisor and then left the workplace for the day. The company did not investigate Kyle’s allegations and he filed a grievance through the union.

The Job

The Company had delivered equipment to an important client and it was returned as defective. The client allowed the Company to attempt to make the issue right by redoing the job. Kyle completed the work and submitted it for inspection prior to being shipped out. The Production Supervisor, Barry inspected the equipment and completely rejected it. Barry told Ed he could not believe the lack of quality with the work that Kyle wanted to submit. The entire job needed to be disassembled and redone which delayed delivery and increased the pressure.

Work Redone

The inspection of the equipment took place at the end of the work day. Kyle, whose work was challenged and was now faced with the prospect of having to redo work, was frustrated. He waved his arms in the air, threw his tools on a work table and told the group that had been assembled to look at the equipment that he did not care and was going to go home and get drunk and forget about it. As it turned out, he did not leave work early that day. Ed was told about the incident, Kyle’s attitude and comments. The work was redone and assembled and Ed decided to inspect it himself before it went out.

Inspection

Kyle said that he came upon Ed and his Manager who appeared to be having an argument. Kyle said he joined them at the location of the equipment and that was when Ed began to be little him. He said Ed was very mad and challenged him about the installation of the equipment. Ed questioned why it needed to be done three or four times and asked why Kyle submitted the previous work for delivery when it was not acceptable. Kyle tried to justify his original work and said that another supervisor thought it looked okay. Kyle said Ed started calling him names including ‘dog f***er’ and accused him of walking around the shop talking on his phone on company time. Kyle said Ed called him a drunk in reference to his comments the previous week. Ed said Kyle was a 30 year man, did not care and did not give a f**k anymore. Ed said, ‘Why don’t the older employees f**k off.’ Kyle responded that he liked his job and wanted to stay. He said the company was lucky to have an employee like him. The Manager intervened and conversation shifted to other topics.

Ed recalled the altercation differently. He said he asked a few questions about the equipment and Kyle became defensive and provided excuses. Ed said that Kyle’s comments about the company being lucky to have him did not go over very well with him. Ed said he replied that Kyle was well paid and that he was paid for every hour.

Ed categorically denied calling Kyle a ‘dogf***er’ and volunteered that he had never used that phrase in his life. He also denied the comments about older employees. Ed admitted to using the ‘f word’ but said that it was not directed at Kyle in particular and claimed they had used the word with each other in the past.

Reported

When the altercation ended, Kyle left and saw his supervisor, Barry. He told Barry what happened and broke down and cried. Barry told him to go home and said they would talk about it on Monday.

Kyle saw Barry on Monday but Barry did not appear to want to talk about the issue. Barry never did get back in touch withKyle. Barry did not pursue the matter further and neither did the Chair of the Workplace Harassment Committee who was aware of the issue.

Hearing

Witness evidence was submitted that Ed had in fact used the term ‘dog f***er’ in a meeting two years previous.

There was no evidence provided of an investigation of any kind into what had happened between Kyle and Ed. Rather, the prime concern by management was the equipment and they continued to remain focussed on that aspect of the issue at the grievance hearing.

Apology

Upon hearing of the grievance, Ed submitted two written apologies to Kyle. However, the apologies continued to maintain that he had not used the language alleged and implied that Kyle had in fact attacked Ed during the exchange, The apologies also focussed on the equipment and the problems in getting the job done. At one point Ed summed his comments during the altercation up as ‘…honest and concise, and never was there any intent to cause Kyle any personal discomfort.”

Kyle testified that he did not think the apologies were sincere.

Finding

The panel found that for the most part Kyle’s evidence was better and more in line with witness information than Ed’s recollection. It was found that Ed indeed used the term ‘dogf***er’ and made the comments about older employees.

The panel found that the altercation did not take place on a level playing field, and that there was a power imbalance present.

The panel also noted that the company did not take any action to investigate the complaint. The fact that Barry was not called as a witness for the employer led the panel to the conclusion that he would have given evidence damaging to the employer.

The panel determined that the comments to Kyle about older employees did constitute harassment on the protected ground of age and also under personal harassment in the company’s policy. The panel sustained Kyle’s grievance by a majority decision.