Author Dylan Hill

Author Dylan Hill

Fired for Spreading Pornography in the Workplace

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.. yet appealing the decision?

Mr S worked for the Province of Manitoba for over 30 years and was terminated following an investigation that addressed inappropriate computer usage in the workplace. He grieved the decision to terminate, though he did not dispute the substance of the allegations relied upon in the decision. The evidence clearly established that Mr S was using his office computer for inappropriate purposes, principally involving the accessing, receipt and dissemination of pornographic material to persons both within and outside the employ of the Province.

I used to see cases like this in the workplace quite regularly, during that relatively distant time when the Internet and computer connectivity at work was new and novel. It was often argued that people did not know any better or were not aware that the computer systems constituted the property of the employer and that the policies of the employer applied. I have not seen many of these cases lately, but as this decision comes from 2014 and 2015, and refers to cases of a similar nature in the Province; clearly they are still occurring. 

The Union did not dispute that Ms S’s conduct justified a disciplinary response by the employer, however they argued that some lesser sanction should be substituted. Mr S’s behaviour constituted hundreds, if not thousands of offensive messages including nudity and sexual activity, lewd jokes and other material. It occurred for at least 24 months. Some messages were particularly upsetting to management upon review; messages which were joking, negative and sarcastic remarks about the work government employees do. The employer had investigated 5 employees for improper computer use and the remaining 4 had retired or been allowed to resign. Mr S was not provided that opportunity.

Mr S was called to a meeting, and he said he did not know what it was about. The employer questioned him about the computer use and then left the room. Mr S was presented a letter shortly thereafter that had obviously been prepared ahead of time and which terminated his employment. The employer indicated that they would have accepted Mr S’s resignation at the meeting if he would have offered it, but he did not.

Mr S also had some prior discipline on record for similar behaviour, albeit 15 years ago. In the arbitration, Mr S showed remorse but could offer no explanation to his conduct other than “I guess I got caught up in it”. He said that he was “profoundly sorry”. Mr S had not offered the employer an apology up to the arbitration, which weighed against the idea that he was truly remorseful.

The arbitrator found that the misconduct by Mr S was serious, persistent, and very troubling in terms of the nature and the volume of the material he disseminated. He found that Mr S’s actions were not “merely impulsive” as they occurred over a lengthy period of time. However, the arbitrator found that Mr S should be provided the same opportunity to resign as the others referred to above. He found “Consistency and the avoidance of unfairness require that treatment.” Accordingly, the grievance was allowed in part. The arbitrator directed that Mr S may tender his resignation.

Sometimes I read these case decisions and wonder: this individual did something at work, that he knew was wrong, had been previously disciplined for it and yet this was repeated behaviour. The employer reacted reasonably and then found themselves in an argument that ultimately changed the outcome from a termination to a resignation. What is the benefit to Mr S? Simply that now the employer has to tell other prospective employers that he resigned versus was terminated? I guess that makes some sense…..perhaps what makes more sense would be not sending pornography etc. while at work, with employer equipment at all, much less for years and years.

Ontario Human Rights Award Reaches $200K

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The laws and policies dealing with harassment and in particular sexual harassment have been in place for decades in Canada, yet the problem persists in all too many workplaces. I have been researching cases and awards for some time and this is the highest award I have seen out of Human Rights. In my view, awards of $10,000.00 or less (what I typically see) are not sufficiently preventative to remedy this horrendous behaviour.

This case involves the hiring of temporary foreign workers to a workplace in Canada at a processing plant. Two complainants came to Canada from Mexico and were subjected to sexual harassment and assault. The complainants detailed numerous instances of unwanted physical contact and sexual comments, all with the threat from the respondent that if they did not comply, he would send them back to Mexico.

Specifically, the respondent in this case was the owner of the processing plant and he began taking one of the complainants to dinner, even though she did not want to go. He insisted and became angry when she tried to refuse and even resorted to threatening her with being sent home. His practice was to house a number of the temporary foreign workers in a house he owned, several to a room, with strict rules like a 10 pm curfew. He also took their passports and all visa related paperwork when they arrived and made them sign papers to authorize such (in English which they did not understand). During one of these dinner incidents, the respondent put his hand on the complainant’s leg and moved it up to her vagina while driving. His behaviours escalated to sexual assault and assault on numerous occasions. The complainant testified that she felt she had no choice but to comply due to the respondent’s constant threats.

The second complainant detailed similar incidents with the respondent, including that he kept asking for sex and telling her that sex with him would cure her physical symptoms when he was driving her to the doctor. The respondent insisted that he was the only person who could drive the workers to the doctor and he had the paperwork they required to access health care in Canada. The respondent sent the second complainant home after threatening her during an incident when he ordered her not to leave the house and she did. She refused to apologize to him and he sent her home.

The first complainant returned to Mexico after a series of assaults. The respondent continued to attempt contact with her by telephone, told her that he loved her and that he wanted to come visit her and her children in Mexico.

The two complainants spoke to the local police and reported the assaults and charges were laid against the respondent. He pled guilty to a lesser offence and never admitted any sexual wrongdoing, rather pled to assault charges.

The two claimants filed an application with the Human Rights Tribunal of Ontario along with dozens of others. The other complainants resolved their complaints before the hearing and the two complainants were the only remaining actions pending.

The Arbitrator considered a significant amount of information including the evidence submitted in other legal venues and the testimony of those involved. The respondent did not provide any evidence. After a lengthy review of the evidence and the case law, the Arbitrator awarded the first complainant $150,000.00 plus interest and the second complainant $50,000.00 plus interest for injury to their dignity, feelings and self-respect. This represents a significant increase in award amount that I have become aware of and, I think, signals a more punitive approach to the horrendous behaviours exhibited by some.

A Nexus

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What is it and why do we need to establish one?

The case research this month that caught my eye is a case out of British Columbia, a Province we are excited to come visit once again in late February for a Public Workshop of Investigation Techniques. Hope to see you there! This case contains one simple argument or point to consider; is there a nexus established? In the past few years I have encountered quite a few cases like this with many professional and sophisticated employees and employers not quite understanding the point. While complex, the decision is simple and sometimes you need to focus on the bottom line when weighing evidence. I hope you enjoy the case and I look forward to any comments or questions you may have!

Ms Campbell complains that she was discriminated against on the basis of physical disability when her employment was terminated. She names three individual respondents, who were all supervisory personnel. The Employer denied the allegations and sought dismissal of the complaint, and an Arbitration was held.

The essence of Ms Campbell’s complaint stems from medical leaves associated with a knee injury she sustained. She alleges that there was a “temporal connection” with her being off work and false allegations of her poor performance.

The respondents said that Ms Campbell’s employment relationship was difficult, characterized by insubordination and failure to fulfill expectations. Investigations of Ms Campbell’s performance were often delayed until she returned to work after medically-related leave. This seemed to give a temporal connection with her return to work and the employer’s investigation of supposed wrongdoing by Ms Campbell.

The culminating incident in the employee relationship revolved around a series of meetings that Ms Campbell failed to attend, with or without notice and with or without medical support for her lack of attendance. She would often fail to show up or fail to support absences with medical documentation. Her particular issue was a knee injury.

Ms Campbell was terminated and the reasons given by the employer was exclusively based upon, and rooted in, her longstanding performance and behavioural issues and had nothing to do with any physical disability, including treatment or absences associated with her medical concerns.

Ms Campbell grieved the termination but the Union chose not to proceed with the grievance. The Union determined that an arbitrator would likely find that the employer had just cause to terminate.

The respondents say that throughout her employment, whenever Ms Campbell was faced with direction or critical feedback with which she disagreed, she would file unfounded, vexatious complaints of “bullying and harassment” against the individuals involved. Even after those complaints were objectively investigated and dismissed without foundation, Ms Campbell continued to describe the individuals involved in a critical and defamatory manner, often publicly.

The Arbitrator moved to a determination about the Complaint on the basis of submissions which involved a preliminary assessment where consideration was made as to the reasonable prospect the complaint would succeed. The threshold for such a review is low. Ms Campbell must only show her evidence is not speculation or conjecture. The requirements of a prima facie case of discrimination were recently affirmed by the Supreme Court of Canada in Moore v. British Columbia 2012 SCC 61. 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 a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice.

In this matter, Ms Campbell has shown that she was disabled, in that she was frequently off work due to the knee injury and surgery. She could also show adverse consequences, i.e. the termination of her employment. The matter that the Arbitrator had to decide was whether she has no reasonable prospect of success in proving that there was a nexus between the disability and the adverse consequences.

The respondent’s evidence demonstrated that Ms Campbell had a longstanding and significant performance and behavioural issues at work. They provided evidence that they made numerous efforts to both bring their concerns to Ms Campbell’s attention and assist her in improving the situation, without success. The respondents submitted that they engaged in a fair, and transparent process of progressive discipline in response to Ms Campbell’s persistent pattern of poor performance and unacceptable behaviour at work.

Ms Campbell had a long history of making complaints and appeals and had submitted all the documentation to support her claim to the Arbitrator. In analysis the Arbitrator was unable to find a nexus between Ms Campbell’s disability and her dismissal. As such, her claims were dismissed upon preliminary review as having no likelihood of success.

This decision touches on an interesting dynamic, especially when an employer policy is limited to objective wording and/or a complaint is filed that an employee has been subject to discipline. I speak about the concept often in my training courses: in the analysis and investigation of the evidence, has a nexus been established? Has the Complainant made a connection in the evidence between their protected characteristic and the adverse impact? Often, I find that they have not. You may as well.