Tag workplace

Tag workplace

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.

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.

The Lasting Impact of Workplace Gossip

In the last few months I have had the opportunity to meet with hundreds of staff members in various organizations across the land in an effort to assess the current health of their workplace. I am called in with a team of associates to get to the bottom of issues in the workplace because things are not running well and the leadership wants to turn the ship around before it is too late. I love these jobs because I get some real insight into the relationships we have at work and our tendencies with respect to conflict.

One of the most common issues I have found relates to gossip. Over 90% of all respondents answer that there is gossip at work. Less than 10% say that they participate. I’m no mathematician, but those ratios seem very unlikely. As I think about the issue, I am led to  wonder, why the disparity? Some of my theories are that the people know that they should not be gossiping so they say they do not participate, or that some think that listening to gossip is not participating. I have even had people tell me that it is not gossip if it is true – which is simply not true!

In any event, the fact is that gossip in the workplace is hardly ever a force for positive change – and that it must be meaningfully reduced in order to help steer a clear course to workplace happiness. The “how to” is some of the most challenging and rewarding work we have here at Hill Advisory Services!

What are your thoughts on workplace gossip? I would love to hear them!