Tag work

Tag work

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”.

Sexual Assault and the Workplace

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When to investigate a matter that occurs outside of the workplace.

One of the questions that I get asked in training quite a bit is whether an event that happens outside the workplace should be investigated. This case illustrates some of the current thought in the area and confirms the basic tenet that inaction is seldom the appropriate response.

The Case

This case is straight-forward in some ways and not as much in others. Some facts were agreed upon by the parties. It is agreed that Bruce, a 54 year old Registered Nurse and married father of two began working with Jane, a 24 year old Administrative Assistant who was single. Bruce acknowledged that he began flirting with Jane in the workplace and he described the activity as mutual. This is where the stories begin to diverge.

The events that follow led Jane to file a report with the Police, Bruce’s arrest and the laying of criminal charges against him, and his unpaid suspension from the workplace. The employer chose to conduct a workplace investigation even though the majority of the events that led to the criminal charges occurred outside the workplace. Bruce was less than fully cooperative with that investigation. At the conclusion of the investigation, Bruce was terminated for cause and his Union filed a grievance on his behalf. An arbitration followed.

After reviewing the evidence in the case, the Crown Attorney declined to file criminal charges.

The Events

Jane testified that shortly after she began work Bruce started to “hit on her” and his actions made her very uncomfortable. Jane did not know what to do as she was new to the organization, relatively young and inexperienced and she felt intimidated by Bruce’s position in the organization. Bruce’s actions toward her increased and culminated with him slapping her “rear” on two separate occasions in the workplace within two days. Jane asked Bruce to stop the behaviour and he said that he would.

Bruce denied the allegation of physical contact but agreed that he was flirtatious with her while at work on a number of occasions.

Jane testified that a day later she finished work and headed to her parents’ home for the night (nobody else was home). It is undisputed that Bruce went to the house at the end of his shift. Jane said that he appeared at her door and she asked him how he knew where she was. He told her that he had looked up the address on the internet and he walked in uninvited. Jane said that Bruce grabbed her hand, placed it on his buttocks and asked “isn’t that hard”. Jane testified that Bruce proceeded to sexually assault her and when she begged for him to stop, he ignored her. Jane said that eventually Bruce left, but not before threatening that she better not tell anyone at work what had happened.

Bruce’s story of the night in question is different. He insisted that Jane called him at work and after a sexually charged conversation, invited him over. He claimed that all the activity in the home that night was consensual.

Jane told her boyfriend and her parents about what happened and they went to the Police and the incident was reported to the Employer. The employer had to decide whether to investigate themselves or whether to rely on the criminal proceedings. Ultimately, they decided that the events were tied to the workplace and that they should conduct their own investigation.

Jane cooperated fully with the internal investigation. Bruce did not and put up barriers for the employer to obtain relevant documentation from his licensing authority. During the arbitration hearing it came up that Bruce had some conditions placed against his license that were related to another case of sexual harassment in another workplace.

The Union objected to the fact that the employer conducted an investigation at all, contending that the events in question occurred outside the workplace, between two adults and that the police were looking into the events. The Union also objected to the length of time of the internal investigation. It took almost a year to go through the entire process, which included requesting information from Bruce’s licensing body, and a mediated settlement attempt.


The arbitrator ruled that Jane’s evidence regarding the night in question was to be preferred quoting cases from the Supreme Court of Canada (R. v. Gagnon [2006] SCC, at papa 20 & F.H. v. McDougall [2008] 3 S.C.R. 41, 2008 SCC 53, at para 49) which spoke to the assessment of credibility.

With relation to the employer investigation, the Arbitrator ruled “In my view, on the basis of the evidence before me, the employer had the right, if not the obligation, to investigate the matter, and if considered necessary, to apply discipline.” The Arbitrator commented that the behaviour began in the workplace and by Bruce’s own evidence, he was attempting to start a relationship with Jane in the workplace.

In terms of the delay in the investigation, the Arbitrator found that the employer did not act in bad faith or that there was deliberate inaction.

The Arbitrator dismissed the grievance.

No One Can Do Everything, But Everyone Can Do Something

I am  working on an investigation right now that involves a person in a position of power over minors. This person decided to send text messages to a variety of staff that were sexual in nature. He would ask staff about sex with their girlfriends, their underwear and their genitals. That sounds bad enough doesn’t it? Well, it gets worse. He did this for over 9 yearsworse still, a number of people knew about it and did nothing. The list of those in the know of at least a piece of information include parents, supervisors and finally HR. As soon as HR became aware, they initiated talks with legal and ultimately an investigation. The good news? He was removed from the workplace. At least there was an appropriate response down the road – but why so much road?

Often we see things that are not right in the workplace and we let psychology take over. We begin minimizing and rationalizing and looking the other way. We do not want to be involved, so we do not get involved. We want to normalize the situation, so we act as if nothing happened. We think that we can’t make effective change, we can’t make a difference, so we don’t. That is how these things develop – that is how this is allowed to happen at work.

If we asked 100 people if this should happen at work, 100 would respond with a resounding “NO WAY”. Yet, it happens all too often and in this case was allowed to continue for 9 years!

Maybe it’s time for us all to start taking a stand or two – to start putting ourselves in others’ shoes and  wondering how what we are pretending not to see or hear may be impacting someone else. Maybe it’s finally time to stop accepting and allowing behaviour in the workplace that is reprehensible! I am not suggesting that we can individually do everything but I am certainly suggesting that we all have a responsibility to do something!