Tag investigation

Tag investigation

Complaints Require Evidence

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Like many of you I enjoyed a little time off over the Holiday Season. That time seems to inevitably include the binge watching of Netflix offerings and this year the show that was all the rage was: Making a Murderer. While I am not going to wade into the criminal aspects of the case presented (no spoilers here) the show did turn my mind towards the levels of evidence and the challenges presented to any investigator. I will present the concepts of ‘prima facie’ and the ‘balance of probabilities’ below in the context of a real case and related to the landscape we find ourselves in, the Canadian labour market and tackling Harassment Investigations in the workplace. I have investigated a number of cases recently where the understanding of this concept was key.

What is prima facie?

Let’s first turn to the internet for a quick definition. “In legal practice the term generally is used to describe: the presentation of sufficient evidence by a claimant to support the legal claim (a prima facie case).” In more than a few of the cases that I investigate, research or hear about when I conduct training, it seems this concept is misunderstood or not considered at all. Simply put prima facie means that it is not sufficient for a Complainant to simply feel that they are being harassed or that discrimination is happening to them without any evidence to support that conclusion. The presentation of sufficient evidence is key. While I do not wish to minimize what is happening in broken relationships in the workplace, for the actions to rise to the level of a breach of relevant policy, they must at least rise above the level of prima facie. This means the presentation of sufficient evidence to support the claim.

To demonstrate prima facie discrimination, complainants must show that they have a characteristic protected from discrimination; that they have experienced an adverse impact; and that the protected characteristic was a factor in the adverse impact. Once the prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice.

The Supreme Court of Canada confirmed that in order to satisfy the “balance of probabilities” standard of proof evidence must be “sufficiently clear, convincing and cogent.”

Case in point:

An applicant testified at an Arbitration that he applied for a managerial position, was interviewed and was not successful in the competition. He said that he had been disadvantaged in the competition because he had not been given the opportunity to act in the position prior to the hiring process. The applicant testified that the decision for the hiring was not made by the panel, but rather was made by a man that he had filed a previous complaint about. The applicant testified that the decision not to hire him had no legitimate basis, but rather was a form of discrimination. The applicant self identified as being Black and of West Indian origin.

In his Application he alleges that during the period of five years he was subject to racial discrimination in twelve job competitions and on numerous occasions while he was carrying out the duties of his job.

Decision: The Application was dismissed in its entirety. The Arbitrator did not find that the applicant established that the respondent’s actions were discriminatory. The Arbitrator was satisfied that the respondent provided credible non-discriminatory explanations for its actions.

The employer was able to provide evidence that demonstrated the hiring decision was based on a solid practice, and in fact the applicant rated 10 out of the 13 people screened in for an interview, based on the average score received from multiple scorers involved in the interview.

The applicant submitted that the interview panel was unfair, as there was no Human Resources representative on the panel and that the scores were so similar. He contended there must have been collusion and that it must have been tainted by discriminatory considerations.

The Arbitrator stated that even if there had been less than optimal interview practices, that the absence of a perfect process did not mean that the applicant was treated differently based on his race, colour or place of origin. The Arbitrator ruled that the applicant had not established a plausible link between his race, colour or place of origin and having not been selected.

The applicant testified regarding another incident during which, he stated a manager spoke to him in a demeaning manner and bullied him. The evidence of a witness in the room contradicted this allegation, as did subsequent email evidence reviewed.

Of particular note the Arbitrator pointed out that the applicant did not provide details as to how the manager treated him beyond the generalizations that he felt demeaned and bullied. He did not explain why he believed the manager’s actions were related to his race, colour and place of origin except to essentially state that because he was bullied and demeaned, it was reasonable to conclude it was somehow discriminatory. The Arbitrator ruled that the applicant failed to meet his onus to show that on a balance of probabilities anything that happened in this meeting was discriminatory.

The applicant went on sick leave for a time and later returned. He testified that when he returned two managers came into his office on separate occasions and complimented him on how well he was doing since his return. The applicant testified that he thought these comments were disingenuous and he thought the managers were making fun of him since they had smirks on their faces. He testified that he knew from his overall experience that this was a further example of being singled out, of being treated unfairly because of his race. This further demonstrates the ill-will that can be created between individuals in the workplace. A smile is seen as a smirk, a comment on a job well done is translated as sarcasm. This element of the case was dismissed for similar reasons.

There were other elements to this case, but the essence is presented here. Complaints require evidence.

In closing I would like to wish you all a great 2016, filled with all the best. May your investigations conclude well and swiftly and may every witness be pleasant and co-operative! We have workshops scheduled for 2016 and I hope to see you at one of them!

Dylan Hill

The Building Blocks of an Investigation

One of the most important factors to a complete and thorough harassment investigation is the statement.  We refer to the statements as the foundation of the report because that is the first place (besides your notes) that you have recorded and presented the evidence of the case.

A properly written statement can do many things for an investigation.  They provide a framework for the case in that statements are the raw material of the case.  Statements give you a structure on which to base your questions for witnesses and they can also point out questions or gaps of information that the investigator needs to fill before the end of the interview or investigation.  Statements are what are left at the end of the interview process that you have the witness sign and take a copy of.  They are what you base your conclusions on.

You would have a difficult time indeed bringing in a conclusion to a case of harassment without the evidence presented in the statements and the final report.  There have been countless times that we have seen reports that attempt to make a conclusion based on a lack of evidence in the statements and the report.  These conclusions are unfortunately the ones that are vulnerable to challenge.

In conducting training across the Country we have learned that statement writing is an area where most harassment investigations need work. People seem to have trouble with taking information they have gathered and presenting it (in the statement and the report) in a clear and complete manner.  Let me state it again, poor statements lead to poor reports.  If the evidence is presented in a poor way in the final report that can lead to being unable to reach a conclusion based on evidence even though the investigator asked all the ‘right’ questions, and maybe even took ‘perfect notes’.  The evidence is just simply not there unless it is presented in a clear manner.

Have you had a witness tell you that they are surprised you were able to take their information and make it make sense?  Are you able to read the final report and have all your questions answered and your conclusions make sense to your boss?  Have you been asked to redo witness interviews and/or entire investigations?  Does the witness ask for excessive changes?  These are all signs that can help you asses your statement taking process.

We do not believe that there is any perfect roadmap for writing a statement but we do have some tips for statement writing:

    1. Use a standard format (the same one every time).
  1. Write the statement in first person present tense.
  2. Do not change the tense of the statement.
  3. Do not change from one person’s version of events to your own thoughts.
  4. Use paragraphs to separate thoughts and incidents.
  5. Use formal names – Never first names.
  6. The statement is one big quote – so additional quotation marks are not needed.
  7. The presentation of evidence and conclusions is for the Report – not the statement.

At Hill Advisory we follow the same pattern to format statements.  We do this because we believe that it keeps our process safe.  We spend the majority of our time writing statements and final reports and we understand the care and diligence required for the task.  We hope you have now been provided with some new thoughts in this most important of areas.

A Failure to Properly Handle an Investigation Leads to a Costly Award

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Ms Jones worked in a male dominated workplace for a City in Ontario. She was subjected to years of harassing behaviours, including sexual comments and touching and after trying to deal with the behaviour for years, filed an internal complaint. The City conducted an investigation. Ms Jones was unhappy with the response and felt that she would be subject to further harassment and retaliation. Ms Jones filed a Human Rights complaint against the harasser and some of the leadership with the City.

Ms Jones had brought her complaint to Mr Williams, who agreed that the behaviour was inappropriate and that it needed to stop. However, instead of dealing with the matter, he deferred the complaint to Mr Johnson who had direct responsibility for  the employees in question. Mr Williams did not contact a Human Rights Specialist and testified that it was his view that the matter did not meet the criteria for a complaint as set out in the City’s policy document. Rather, he believed the matter amounted to a conflict between two employees that should be resolved by the Manager.

Ms Jones took the matter to Mr Johnson as instructed but as he was on vacation, it was two weeks until she was able to talk to him. When she explained her complaint, Mr Johnson told her that he had spoken to Mr Smith about that type of behaviour in the past. Mr Johnson said that if she wanted to file a complaint, she would have to get a union representative, come back and see him. Mr Johnson told Ms Jones that her allegations, if substantiated could likely end in the termination of Mr Smith and he described Mr Smith as an old school employee who was not malicious but simply did not know any better. Ms Jones felt that Mr Johnson was trying to get her to decide not to file a complaint.

Ms Jones was not satisfied with the investigation and the communication at the end and felt that the behaviour would not stop as a result. There was a further incident of touching in the workplace and Ms Jones was forced to work the night shift in order to get away from Mr Smith.

Ms Jones asked for information relating to the investigation and discipline to Mr Smith but did not receive responses. Her Union tried to get information, unsuccessfully. Ms Jones filed a complaint with Human Rights. Her complaint relied on essentially the same information presented earlier, however there were also concerns of retaliation like manipulating the overtime schedule to deny her opportunity and excessive scrutiny of her work. Ms Jones contended that her workplace had been poisoned.

A single Arbitrator heard the facts of the complaint and analyzed the arguments and precedents set forth by both the Union and the City. The Arbitrator found that Ms Jones was subject to harassment in the workplace, that Mr Smith caused Ms Jones’s work environment to be poisoned on the basis of her sex, and that she was subject to reprisals after filing a complaint.

The Arbitrator turned to the question of the City’s liability and found that as a person in a position of authority, Mr Smith was part of the “directing mind” of the organization, such that his conduct with respect to Ms Jones effectively became that of the City. Consequently, the Arbitrator found that the City was responsible for Mr Smith’s behaviour. The Arbitrator also concluded that Mr Smith caused Ms Jones’s work environment to be poisoned, while he was a member of management, and found the City liable for the poisoned work environment.

The Arbitrator turned to the question of the Employer response and cited: “…Laskowska v. Marineland of Canada, supra [cited in Harriott v. National Money Mart, supra],…” for evaluation of the Employer response. The Arbitrator found that the Employer had sufficient policies but failed to properly educate the employees. The Arbitrator ruled that the Employer did not treat the complaint seriously and did not deal with the matter promptly and sensitively. The Arbitrator ruled that the investigation was flawed, in that the HRS did not interview witnesses to the events described in the complaint. The Arbitrator found that the City failed to take appropriate action to ensure that Ms Jones’s workplace would remain safe and that no further harassment would occur, namely, removing Mr Smith as her supervisor. The Arbitrator found both Mr Williams and Mr Johnson personally in breach of the Human Rights Code. The Arbitrator ordered general damages against the City in the amount of $25,000.00, as well as stipulating some training and eduction in the workplace.