Tag workplace

Tag workplace

Dylan Hill
September 1, 2012

Did You Hit Your Head?

How a brain injury surfaces as a defense to sexual harassment years after the event

Mr Hogg worked for a Regional government in the capacity of Maintenance worker in one of their buildings. He worked with approximately 50 others, 95% of whom were female. Mr Hogg was terminated after about two years of service, for a variety of breaches to the Employer’s policies. In the letter of termination, the Employer also indicated that Mr Hogg was dishonest during the investigation and as such they possessed no hope of his rehabilitative potential. The Union filed a grievance of the termination on Mr Hogg’s behalf.

The termination letter outlined the reasons for termination which included: grabbing two female co-workers‘ buttocks; making an offensive and unwelcome comment to a male co-worker about his wife; asking a female co-worker if she was on her menstrual cycle; making sexual comments to co-workers with respect to his sex life with others; asking a female co- worker about detailed sexual experiences; making sexual gestures and comments about a “doweling” used to hold keys; and asking a female co-worker about the underwear she was wearing.

The Employer’s investigation was commenced by a complaint received by a male co- worker, Mr Troy who was working with Mr Hogg one day. Mr Hogg made a comment about Mr Troy’s wife and said that she liked it when he touched her buttocks. Mr Troy responded that if Mr Hogg made a comment like that again, he would knock out some of his teeth. Mr Troy reported the incident to the Employer and was concerned that he might be disciplined for making that comment to Mr Hogg. The Employer commenced an investigation, where numerous allegations about Mr Hogg emerged.

Several female co-workers testified that Mr Hogg referred to the size of his penis to them on various occasions. He made comparisons with a wood doweling that he carried with him that had keys attached to it. The female co-workers also testified that Mr Hogg made explicit comments about his sexual relations with other women. They indicated to him that his comments were “disgusting” and walked away when he made them.

Mother/daughter

Ms Cox and Ms Leach were mother/ daughter and working in the same unit. Mr Hogg made inappropriate comments to both of them. He also touched both of them on their buttocks on separate occasions.

Mr Hogg came up behind Ms Cox while she was bent over cleaning a toilet and grabbed her buttocks. She turned around, and he attempted to touch her breast. She asked what he thought he was doing. Mr Hogg said she had given him permission and she replied that she had not. He laughed and walked away. Shortly after the incident with Ms Cox, he did almost the exact same thing to Ms Leach. He also asked Ms Leach if she was “on her period” and asked her about the nature of her orgasms.

Mr Hogg made comments to both Ms Cox and Ms Leach that he would like to have a threesome with a mother/daughter combination. They replied that such a suggestion was disgusting.

Mr Hogg made a comment to Ms Leach that he could see through her pants and that he knew she was wearing “boy shorts”.

Environment

The Union argued that the environment in the workplace was permissive of sexual type comments between co-workers and claimed such comments were pervasive. The Union called several co-workers who gave evidence to this effect, however, testimony from Employer witnesses contradicted them. The Union witnesses relied on examples of past comments from employees who had long since left the work-place and/or had been disciplined for the behaviour.

Grievor testimony

Mr Hogg maintained that he had personal conversations with the female employees in question and said that they were initiated by the women. He said that they were comfortable in every conversation and instigated most of them. He did not deny most of the verbal allegations. In answer to the physical contact, he said that Ms Cox gave him explicit permission to “touch my ass any time”. He admitted to doing so on the occasion in question. He denied having touched Ms Leach in that manner and instead said that he had simply touched her hip to get her attention. Mr Hogg denied saying anything about a threesome. He said that during the Employer investigation, they asked him if he had “grabbed” Ms Cox’s buttocks and he replied that he did not because he had not grabbed it but had “touched” it.

Arguments

The Union argued that the Employer did not follow their own policy in relation to the investigation. The specific concern was that a complaint came from Mr Troy and then the Employer was concerned about Mr Hogg’s behaviour and investigated further.

The also Union also argued that as a result of an acquired brain injury, Mr Hogg had a “filtration” problem. The brain injury was sustained eight years earlier.

Experts

The Union and the Employer each called expert medical witnesses to speak on the brain injury component. Their testimony disagreed. The Union expert stated the brain injury contributed to his behaviour in the workplace and the Employer expert disagreed. The Union expert relied on evidence from a survey given to Mr Hogg’s mother about his behaviour before and after the injury.

There was also evidence submitted that there had been no previous medical concerns regarding sexually impulsive actions or comments in the preceding eight years.

Ruling

The Arbitrator ruled that the argument regarding following Employer policy had no merit. He stated that the policy is but one avenue to investigate and act, not the only avenue. He further stated that Mr Hogg had access to the grievance arbitration process to challenge any discipline assessed.

The Employer evidence regarding the environment was was preferred. The Arbitrator noted that the evidence presented by the Union witnesses was non-specific or dated.

The Arbitrator turned to Faryna v. Chorny to assess Mr Hogg’s credibility regarding the buttocks “touch” and preferred Ms Cox’s testimony to Mr Hogg’s. He asked the question: Why would a married woman, old enough to be his mother, give him carte blanche to lay a hand to that part of her anatomy?

The Arbitrator considered the brain injury. The crucial point was: if the behaviour was caused by a brain injury, it would not have suddenly surfaced eight years after the injury. The medical opinion preferred also indicated that any such impairment would likely cause more wide spread comments.

The Arbitrator concluded that the dismissal was justified and dismissed the grievance.

Dylan Hill
March 1, 2011

Harassment – Not Simply A Feeling

THE BURDEN OF PROOF EXISTS FOR THE COMPLAINANT

Ms Mora was employed as a pharmacy technician at a retail location. Mr Karan joined that location as a pharmacist. Ms Mora complained that she had been harassed and then subsequently complained that her Employer had failed to take appropriate steps to deal with her harassment complaint. The Employer denied that Ms Mora had been harassed and said that it had conducted a proper investigation of her complaints.

Ms Mora alleged that over the period of two years during which they worked together, Mr Karan made verbal comments to her, which amounted to harassment on the basis of age and sex.

Ms Mora’s first example constituted a comment made by Mr Karan soon after he came to be employed at the same location. Mr Karan said that he liked his new job and that he intended on staying at the pharmacy. She did not provide any detail as to how this comment harassed her on the basis of age or sex.

Ms Mora testified that there was further harassment when Mr Karan told her he might call head office and say bad things about her and that head office would believe him as the Employer needed pharmacists and did not need pharmacy technicians. Mr Karan denied the allegation but did indicate he had concerns with Ms Mora’s work performance which he addressed with management.

Ms Mora testified that Mr Karan told her that the job of pharmacy technician was an easy job and that he wanted it for his wife. Mr Karan denied the comments and indicated that his wife ended up working in the same pharmacy as a pharmacist. She said he made comments about the value of her house and her RRSP’s. Ms Mora asked Mr Karan how he would know where she lived and asked if he had driven by her home. He did not answer but Ms Mora took his body language to mean that he had indeed driven past her home.

Ms Mora said he was always complaining and putting her down in any way he could.

27 months later

Ms Mora testified that 27 months later Mr Karan yelled at her “What kind of hormones are you taking?” Ms Mora understood that comment to be a reference to menopause and to her age. He had earlier asked her what she was doing to remain so youthful, so young looking. Mr Karan denied making the comment or yelling at her. He indicated he had filled prescriptions for her on occasion so had some access to her medication information.

Reported

Ms Mora said that there had been one or two meetings where she, the store manager, Mr Karan and, the pharmacy supervisor had discussed matters relating to the difficulties between herself and Mr Karan. She said that she had not reported her specific concerns to the Employer but, instead, she had indicated that Mr Karan was treating her unfairly, yelling at her, and scolding her. She said that Mr Karan brought up her poor job performance. She testified that nothing was solved at the meetings. Management testified that they addressed the situation appropriately.

The complaint

Ms Mora filed a Human Rights complaint and that was examined as part of the Arbitration. During examination, Ms Mora acknowledged that in her complaint she had deliberately provided incorrect dates for some of the alleged incidents of harassment. Ms Mora had dated some of the incidents 2 years later than they had actually occurred to make them appear more recent. Ms Mora testified that she felt she had to take these steps, in order to protect herself because no one would give her any protection.

Ms Mora testified that she had been off work for a significant period of time and attributed that time off to dealing with Mr Karan. She indicated that the interactions with him had caused a variety of medical disorders, including nausea and vomiting when considering a return to the workplace.

During cross examination at the Arbitration, she stated that the concern she reported to management about Mr Karan was related to him being ‘short’ with her and raising his voice. She agreed that Mr Karan indicated he had concerns with her job performance at that meeting. She also agreed that Mr Karan had said that if he offended her he was sorry and that he did not intend to offend her. She agreed that she and Mr Karan were told that they needed to be civil to one another and work together.

Ms Mora testified that she had requested a meeting with Ms Shore (the Employer’s Senior Manager, Industrial Relations) with a Union representative. She said she had wanted to meet with her because all the other persons investigating her complaints had been men. Ms Shore asked her about the events and they had a full meeting about the issues. Ms Shore asked if anyone had witnessed the events and Ms Mora took that to mean that she did not believe her.

Observations

Ms Mora failed to respond frequently during the cross examination and needed to be asked questions multiple times. When advised that witnesses contradicted her testimony, Ms Mora frequently responded that they were not truthful persons.

Ms Mora wrote several letters to others within the organization complaining that she had been harassed and complaining that the Employer had failed to respond to her harassment complaint. The Arbitrator found that the letters uniformly “stretched the truth.” She characterized the issues as being ignored by management. A number of her comments were contrary to her own evidence at the hearing.

The Findings

The Arbitrator examined each of the reported incidents and weighed them against the Human Rights Code and the Collective Agreement. Ms Mora had complained that she had been harassed on the basis of age and sex.

He concluded that harassment had notoccurred.

Further, the Arbitrator looked at the credibility of the main parties. Henoted that Ms Mora was willing to lie on her Human Rights Code complaint. He also noted her willingness to shape her evidence to her favor both in her letters to the Employer and at the hearing. He found that Ms Mora was not a direct and forth right witness at the hearing. He found Ms Mora lacked credibility.

The arbitrator found Mr Karan to be a credible witness.

The Arbitrator found the Employer did conduct a reasonable investigation and reached a conclusion that no harassment took place based on its review of the evidence. The Employer reviewed the matter on at least two further occasions and, in each instance, reaffirmed its earlier conclusion. The arbitrator stated “I can find no fault with the Employer’s investigation.” The arbitrator concluded “both the grievance and the complaint under the Code are dismissed.”

Dylan Hill
December 1, 2009

Breach Confidentiality At Your Own Risk

Managing progressive discipline important too

The Employer provides heat treatment services in industrial plants and Gerry worked in Alberta. Mary worked in the same office and conducted Administrative tasks. Joe was the Operations Manager and was married to Mary.

One day Mary disclosed to Bob, the Regional Manager, that Gerry had ‘grabbed her bum’ in the office. The Employer commenced an investigation and conducted interviews of both Mary and Gerry. Gerry denied ever touching Mary. The Employer determined that it would be necessary to separate Gerry and Mary during the investigation and further concluded it would be impossible to do so within the small office in Alberta. The matter was further complicated by the fact that Mary’s husband was Gerry’s supervisor.

The Employer wanted to keep the matter confidential while the investigation into the allegation of sexual harassment proceeded. They quickly transferred Gerry to a plant in Ontario and cautioned him to keep the matter confidential.

The Employer first raised the issue with Gerry in the morning one day. By the afternoon of that same day Gerry had packed his bags and was on a flight to Ontario. Gerry was extremely upset by what he considered to be false allegations and unfair treatment. He told a number of employees about the allegations and his forced transfer to Ontario. The information swept through the company leading to wide-spread gossip among employees and resulted in the complainant being identified. This was exactly what the Employer had hoped to avoid.

The Employer concluded through it’s investigation that it was inconclusive whether Gerry had in fact grabbed Mary’s ‘bum.’ Nevertheless, they terminated Gerry’s employment for breaching a direction to keep the matter confidential while the investigation proceeded. Gerry filed a grievance claiming he was dismissed without just cause.

Initial Allegation

Bob had lunch with Mary and Joe one day when he was in the office in Alberta. Mary told him that Gerry had grabbed her ‘bum’ as well as some other concerns. They discussed how the matter should be dealt with. Mary and Joe were embarrassed and wanted to keep this matter quiet.

The Employer had a “Workplace Harassment Policy” that outlined procedure which included getting the VP of HR (Frank) involved. Frank was advised and phoned Mary to obtain details of the allegation. Frank then called Bob and asked to speak with Gerry over the phone.

Frank was the first Employer agent to apprise Gerry of the allegations. Gerry denied them and after the phone call,Bob began to discuss the process with Gerry. He said that an investigation would be undertaken and that first and foremost maintaining privacy was very important. Bob advised Gerry that they needed to contain it as much as possible since that would protect everybody including Gerry. Bob told Gerry that only a limited number of people knew about the matter. Bob believed Gerry accepted and understood that it was important to maintain privacy although Gerry did not expressly state that he agreed or disagreed with the instruction.

Separation

Frank contacted Bob later on and advised that the procedure was to separate employees during an investigation. Bob replied it would be difficult with in Alberta as it was a very small office. Gerry was given the option of resigning and returning to his home in the Maritimes (the Employer would pay for the flight) or of working with another area of the Employer in Ontario. He chose to take the transfer to Ontario. Bob arranged for a flight that day, advised Gerry to pack and drove him to the airport that afternoon.

During the arrangements, Bob received a call from Lance, a Union Rep who wanted to know the details of the allegations. Bob did not want to discuss them.

Bob returned to his workplace the following day and when he arrived, he noticed the workplace was in an uproar and everybody knew of the allegations against Gerry.

Breach Confidentiality

It was alleged that Gerry called a number of people and told them of the allegations against him. Mary indicated she was even asked about the allegations by two servers at a local restaurant. Gerry talked to members of his family, friends, Union Rep’s, supervisors, and co-workers.

Termination

Bob emailed Frank an update that day and indicated that he had coached Gerry, Mary and Joe to keep the matter confidential. He indicated Gerry called a number of coworkers and told them everything hoping to get the Court of public opinion on his side. He indicated that Gerry had decided to de-rail their process and that he had instructed the site in Ontario to lay off Gerry. Frank responded that same day and indicated that based on the information provided he would terminate Gerry immediately for insubordination. They believed Gerry violated his trust when he espoused to everyone the ‘results of our investigations’ and that confidentiality in any internal investigation was critical for the benefit of every employee involved.

Under Consideration

The Arbitrator held that the sole matter under review was the issue of insubordination and did not deal with the matter of the initial allegation. In order to assess the matter of insubordination, the Arbitrator identified four essential elements; 1) An order was in fact given, 2) The order was clearly communicated to the employee, 3) The order was given by someone with the proper authority and 4) The employee either refused to acknowledge the order or actually refused to comply with it.

Conclusion

The arbitrator found that although a specific, direct order had not been explicitly given, it was clear that the Employer wanted Gerry to keep the matter confidential. He found Bob had the authority to give the order. The arbitrator turned to the matter of the circumstances and details of the conversations Gerry had about the allegations. He found that some of them were valid and did not fault Gerry for them, however he found that there was no need to tell several of the people that he did.

The arbitrator considered the level of discipline and determined termination was excessive. He based the decision of a analysis off actors including; a direct order had not been given, there was no warning that termination could occur, no progressive discipline had been followed, and Gerry was a good employee with no previous discipline.

Gerry asked to be reinstated. The Arbitrator concluded that such a situation would be a disaster for all as Mary and Joe still worked in the office. He concluded that the employment relationship was no longer viable due to the culpable conduct of Gerry in breaching confidentiality. He concluded that he would not reinstate Gerry but rather awarded damages.