Tag workplace

Tag workplace

Dylan Hill
September 5, 2013

A Tale of Two Investigators

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How hiring the right external investigator matters

Two investigations were conducted by external investigators, one by Hill Advisory Services and one by another company (Company X). In each case there were allegations of harassment in the workplace and extensive interviews were conducted.

Case 1, investigated by Company X resulted in a five-day suspension without pay being imposed and the affected employee filed a grievance related to the discipline. The Employer reduced the penalty to a three-day suspension but the case proceeded to arbitration.

Case 2, investigated by Hill Advisory Services, resulted in the termination of a long service employee. The affected employee filed a grievance related to the termination and the case proceeded to arbitration.

In Case 1, there were a number of challenges which culminated in the arbitration panel concluding that the Employer did not prove that the conduct of the Grievor relied upon by the Employer to impose discipline was proven. The Panel set aside the discipline and instructed that the Grievor be made whole for the loss of pay, benefits and any seniority resulting from the suspension.

In Case 2, there were a number of challenges as well, however, the majority of the Arbitration Panel concluded that the Employer had just cause to terminate the Grievor and dismissed the grievance.

The problems with Case 1

One of the major problems with the investigation in the case was that although an extensive number of interviews were held (54 in fact) there was a lack of clear documentation. The final report presented information that had been aggregated and appeared to be conclusions drawn from a number of sources of indefinite nature.

Some problems became apparent in the report. Wording like “Most interviewees appeared committed…” and “The majority of the witnesses appeared credible, reasonable, and fair when providing their information” pointed to some serious concerns.

In the Findings section of the report, Company X made statements like “Several witnesses verified the Complainant’s version of events referred to in her complaint” and “A thorough investigation of the Complainant’s complaint has exposed a history of abusive destructive behaviour of three controlling and manipulative employees.” Company X concluded that there had been breaches to the Employer’s Harassment Policy, and made conclusions related to the Human Rights Code.

Company X concluded that the Grievor had “lied to the investigator” when asked about whether he had overheard a remark. He had replied that he did not recall. The investigator determined that was a lie based on their perception that he would have recalled a comment like the one alleged and so he was not telling the truth.

The Employer accepted this investigation and the findings and suspended the Grievor for 5 days without pay.

Arbitration

The arbitration panel asserted that the report put forth by an external investigator “is nothing more than an explanation as to why the employer levied discipline.” The Employer must still prove the facts giving rise to the discipline.

Investigation issues

The Grievor provided a written response to the allegations against him. In addition, Company X interviewed him, however, the interview lasted for 30 minutes and the Grievor testified that the investigator cut him off, did not give him a chance to talk about what he wanted to talk about, and only talked about things that he wanted to talk about. He testified that the investigator would physically put down his pen and cut him off when he spoke.

The Complainant testified that the words in portions of the allegations were the investigator’s words, not hers and she indicated that she first became aware of some of the specific quotes attributed to her when she read the report..

Finding

The Panel found that there was no basis for the conclusion that the Grievor had lied to the investigator.

The Panel found that the Employer had failed to prove that the behaviour of the Grievor should have led to discipline.

Hill Advisory Investigation

In our 24 years of Harassment Investigation, we have rarely had a case proceed to Arbitration. However, in this case the Grievor filed a grievance related to his termination. The arbitration panel asserted the same principal, that any investigation held is nothing more than an explanation as to why the employer levied discipline, it is not in essence direct evidence, but rather hearsay.

This is where the similarities end, with the Hill Advisory Services process, we meet with all parties and compile signed statements from all interviewed. In this particular case, witnesses were called by the arbitration panel and asked to confirm their statements were their evidence, which they did as their signatures were present on the documents. Further, these witnesses were then open to cross examination on their statements and the arbitration panel concluded that because of that, the statements could be relied upon as direct evidence. The panel included various portions of the statements given to Hill Advisory Services in the arbitration decision, and included the cross examination on the various points.

The panel found that the Grievor’s behaviour warranted discipline. They turned to the question of whether the termination was appropriate, especially in light of the Grievor’s clear disciplinary record and 22 years of service. The panel found that the Grievor had been informed a number of times that his behaviour was unwelcome, though no formal disciplinary action had been taken and ruled that formal discipline would not have made any difference to his behaviour. The panel dismissed the grievance.

Conclusion

A proper Investigation is a clear and unbiased process that bases any conclusions on facts and helps to keep Employers safe. This philosophy is the reason for many of our techniques and why we conduct investigations in the manner we do. In the Hill Advisory case, the panel relied on many parts of the statements given to the investigators, that were signed and dated, and many portions of the report. There were no statements made by the panel that we had reached conclusions that were not based on the evidence and ultimately, even though a termination of a long service employee with a long service record is a serious decision, the panel supported that decision.

In the other case, comments in the report were questioned, and in our view, some of them were clearly inappropriate, not based on evidence and created the result of putting the Employer at risk.

In the end, the adage “Buyer beware” is appropriate. Know who you are hiring and how they will be conducting the investigation.

 

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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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Dylan Hill
April 19, 2013

Humour in the Workplace

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In today’s day and age of difficult business transition, it has become increasingly difficult to judge the effect of your particular brand of humour. At Hill Advisory Services we often encounter people that believe that there can simply be no humour in the workplace.

We often hear phrases like, “I can’t say anything at work” or “I guess we can’t have any fun at all.”

We could not disagree with that sentiment more! We urge people to find humour that doesn’t target, degrade, humiliate etc. We have heard the response, “There are no jokes that do not target someone.” Again, we could not disagree more! Have a look at the brand of humour used by Bill Cosby for example. Sometimes good humour is the only thing that brings us back to the workplace following a difficult day!