Addressing Workplace Harassment in the #MeToo Era

Cameron R. Wardell Natasha Jategaonkar

September 13, 2018

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Face to Face. Coast to Coast. Wherever you work, we’re here for you.

Mathews Dinsdale is Canada’s oldest and only coast-to-coast management side labour and employment law firm:

•  Six offices + Kelowna •  Lawyers experienced in all aspects of the workplace •  Top 10 Labour and Employment Boutique

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We assist employers in many areas: •  Labour Relations & Collective Bargaining •  Grievances and Arbitration •  Wrongful Dismissal & Constructive Dismissal •  Privacy & Human Rights •  Employment Standards •  Business Immigration •  Workplace Safety and Insurance •  Workplace Policies and Practices

The #MeToo Movement

The #MeToo Movement

The #MeToo Movement

Where is #MeToo at today?

The #MeToo Movement

Harassment in Canadian Workplaces

What is Bullying & Harassment?

• INCLUDES any inappropriate conduct or comment by a person towards a worker that the person knew or reasonably ought to have known would cause that worker to be humiliated or intimidated

• BUT EXCLUDES any reasonable action taken by an employer or supervisor relating to the management and direction of workers or the place of employment

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Legal Duties: Prevention

BC Workers Compensation Act •  Section 115(1)(a): Duty of employer to ensure

health and safety of “workers”

WorkSafeBC “Reasonable Steps” by Employer a)  Develop policy statement with respect to workplace bullying

and harassment not being acceptable or tolerated

b)  Take steps to prevent or minimize workplace bullying and harassment

c)  Develop and implement procedures for workers to report workplace bullying and harassment

d)  Develop and implement procedures for employer to address incidents or complaints of workplace bullying and harassment

e)  Inform workers of the policy statement in (a) and the steps taken in (b)

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WorkSafeBC “Reasonable Steps”, cont.

f)   Train supervisors and workers

g)   Annually review the above steps

h)   Do not engage in bullying and harassment of workers and supervisors

i)   Apply and comply with employer’s policies and procedures on bullying and harassment

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Prohibited Grounds of Discrimination BC Human Rights Code, Section 13(1) Prohibits discrimination in employment on the basis of: •  race, colour, ancestry, place of origin •  political belief •  religion •  marital status or family status •  physical or mental disability •  sex, sexual orientation, gender identity or expression, •  age or •  criminal or summary conviction offence unrelated to

employment

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Legal Duties: Human Rights

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Sexual Harassment

Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252 •  “… sexual harassment in the workplace may be broadly

defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.”

•  “I do not think that every act of workplace foolishness was intended to be captured by the word ‘harassment’. This is a serious word, to be used seriously and applied vigorously when the occasion warrants its use.

•  It should not be trivialized, cheapened or devalued by using it as a loose label to cover petty acts or foolish words, where the harm, by any objective standard, is fleeting.

- BCGEU v Government of BC, [1995] BCCAAA No 131 (Laing)

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Limits on Definition of Bullying & Harassment

Reacting to Possible Situations of Discrimination and Harassment When and How to Act

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Reacting to Possible Harassment

•  Information surrounding a potential workplace conflict has been brought to the attention of management/human resources.

Now what?

OR

It is a capital mistake to theorize before you have all the evidence. It biases the judgement.

Sherlock Holmes, A Study in Scarlet (Sir. A. Conan Doyle, 1887)

I never guess. It is a shocking habit — destructive to the logical faculty.

Sherlock Holmes, The Sign of the Four (Sir. A. Conan Doyle, 1890)

Why Investigate

Why Investigate

•  In no particular order:

•  Minimize legal and reputational risk

•  Legal obligation to ensure a safe workplace •  Important not to create perception of condonation •  A response is not effective without full understanding of

what happened •  Decisions are not made properly without a proper factual

foundation

Workplace Investigations: Common Myths and Misconceptions

Common Myths and Misconceptions

Investigations are: •  Too complex •  Too time consuming •  Too sensitive

Common Mistakes

•  Failure to act at all or promptly after receiving a complaint •  Failure to plan investigation •  Failure to locate and review relevant documents •  Failure to interview all relevant witnesses •  Failure to follow up as investigation develops •  Failure to not act on findings/implement decisions •  Failure to take steps to minimize chance of reoccurrence.

Pitfalls to Avoid – Myths and Stereotypes

•  Lack of evidence •  Lack of demonstrated resistance •  Delay in reporting •  Emotionality and post-incident conduct

Conducting an Investigation: A “How to” Guide

1. Assessment and Planning

2. Gathering Information

3. Finding the Facts

4. Writing the Report

5. Communicating the

Results

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Assessment and Planning

(1) Preliminary Steps 1.  Assess bias as an investigator. 2.  Determine how the

investigation was initiated. 3.  Evaluate criminal act alleged. 4.  Assess communications with

Complainant at this point. 5.  Determine whether the

allegations are serious enough to warrant an independent third party investigator or police involvement.

(2) Report Considerations 1.  Determine which

documentation should be reviewed.

2.  Evaluate whether any relevant documents raise procedural issues.

3.  Identify timelines for any actions required from the documents.

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Assessment and Planning, cont #1 •  Confirm your appropriate jurisdiction re: fact findings,

recommendations •  Identify to whom your Report will be published •  Consider parties and sequence for interviewing •  Assess the usefulness of a site visit and timing of such •  Evaluate involvement of the union where applicable •  Consider speaking with legal counsel or outside experts •  Advise complainant and respondent of your Investigator

status •  Arrange meetings with relevant parties, including witnesses •  Ensure fair process

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(1) Meeting Administration 1.  Explain your role and

jurisdiction. 2.  Explain confidentiality and truth

requirements to witnesses 3.  Revisit employer

communications with the complainant.

4.  Prepare witnesses for further questioning following review of notes

(2) Interviewing & Follow-Up 1.  Interview the complainant first,

followed by the respondent(s). Interview all parties separately.

2.  Following these interviews, interview other witnesses individually.

3.  Review information to determine follow-up questions.

4.  If necessary, meet again with the relevant parties.

Gathering Information #2

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Complainant •  Inform of the process and the issue

of anonymity •  What happened? •  Context/circumstances? •  Impact to complainant? •  Are the events documented? •  Potential witnesses? •  Outcome sought?

Respondent •  Inform of complaint against

respondent and identity of complainant

•  Inform of process and dealing with retaliation

•  What happened? •  Is there additional information to be

provided? •  Additional context? •  Potential witnesses?

Gathering Information: Complainant and Respondent Interviews

#2

•  Organization and Summary •  Review and organize notes and documents. •  Summarize each witness’ evidence

•  Fact Finding •  Do any allegations involve off-duty conduct? •  Assess complainant(s), respondent(s), and witnesses on:

•  Self-interest •  Observational skills •  Probability of story &

any conflicting accounts •  Overall consistency

•  Apply onus of proof

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Finding the Facts #3

1.  Introduce your role in the investigation 2.  Summarize the investigation process and the complaint 3.  Record the complainant(s), respondent(s) and witness stories 4.  Provide findings of fact 5.  Set out determination: was the conduct complained of

harassment? 6.  Set out recommendations (if applicable) 7.  Submit report

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Writing the Report #4

•  Provide report to management for decision •  Determine appropriate response

(We will come back to this) •  Inform complainant and respondent of results of investigation

and corrective action to be taken •  Preserve report as part of employee file (maintaining

appropriate confidentiality)

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After the Investigation is Complete #5

After the Investigation is Complete #5

Possible Outcomes (several may apply):

•  Complaint substantiated

•  Management deficiency identified

•  Complaint made in bad faith

•  Potential systemic issues identified

•  Complaint unsubstantiated / inconclusive

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