This is a tragic case ... The particular circumstances of a vulnerable victim, and insensitive management has created a situation that no-one wanted, but which has cost the Grievor a great deal in terms of her health and well-being, and her future. ... We cannot restore what was taken away from the Grievor, but we can compensate her for her losses which this award has done.
Yet another case of sexual harassment in the workplace. A situation so bad that the harassed employee, installed a camera to document that she was, in fact, being assaulted. Even then, she was not taken seriously and what happened fell short of what you would expect in the modern workplace. As a result of this recent decision, the City of Calgary is now set to review its sexual harassment policies as reported by the Calgary Herald in City review sexual harassment policies after assaulted employee awarded $800,000. At the time of this blog the decision remains unreported, but is available at Calgary city clerk gets $800K for sexual assault horror – victim left suicidal and unable to work.
This is one of the largest labour arbitration awards seen recently. The award totaled approximately $870,000. Here's the breakdown:
Loss of Past Income: $135,630
Future Income Loss: $512,149
Pension Loss: $ 68,243
Special Damages: $ 28,000
The following is the story told by Arbitrator Smith in the grievance arbitration award released last month.
The grievor, a Clerk, was sexually assaulted by a co-worker, a Senior Foreman, who also held local, provincial and national executive positions with CUPE. The grievor and the Senior Foreman worked in the same place and reported to the same Manager in the City's Roads Division. At the time of the assaults, the Senior Foreman was on track for promotion. In the grievor's mind, he was a powerful man in the workplace.
The sexual assaults occurred on eight occasions in November 2010. The grievor reported the assaults to the Manager, but didn't provide a name. On this, Arbitrator Smith said:
...As an observation it appears that the Grievor did give enough information to [the Manager] about the number and location of the assaults for him to have at least a clue as to who was perpetrating them. ...
Two weeks later, an extension was made to the grievor's desk so that it was more difficult to approach her from behind which was what the Senior Foreman had been doing. Then the Manager who received the Grievor's complaint left for vacation. The Senior Foreman was left in charge. The assaults continued. Afraid that she would not be believed, the Grievor installed a "spy camera" capturing images of the next day's assault.
On December 10, the Grievor and her husband met with the department City Road's Division Director and the Manager's Manager. The Grievor described the assaults and provided still pictures from the camera. The photos were returned to the Grievor and the meeting concluded after discussion of the necessity for an investigation and counselling information. After this meeting, the Manager's Manager contacted Corporate Security about the allegations. In his report to Corporate Security, he described the photos as "in his opinion, inconclusive".
On December 13, the Senior Foreman was suspended without pay.
On December 20, when the Grievor arrived at work, it appeared to her that her keyboard had been sabotaged with what she thought was "rat poison". An investigation was started, but never completed. However, as a result of this incident, the Grievor was moved to another facility.
On January 6, the Grievor was instructed to return to her former position and a string of e-mail resulted in the following comments made to the Grievor by the Manager's Manager:
Mike was and will soon again be, your supervisor. You need to think hard about how you speak to people, specifically the lack of respect that you consistently display. I suggest you re-read the city's Respectful Workplace policy. Consider this counseling.
That same day, a meeting was arranged with City management and Human Resources employees to discuss what to do about the Grievor since she had informed a co-worker that she intended to bring her complaint(s) to the Mayor. In the words of Arbitrator Smith:
... At that meeting it was agreed that the City would require the Grievor to attend a mandatory IME with Dr. Spivak on January 10, 2011. A letter to that effect was delivered to the Grievor on January 7, 2011.
When the Grievor arrived for the IME, she discovered that it was with a psychiatrist and that the City would receive a copy of his report. She refused to continue and left on a previously planned one-week vacation.
She was eventually returned to her old position. What did her Manager do? He required her to provide a "fitness to return to work certificate" from her family doctor. She complied even though she had never been off work for being "unfit" and had simply been away on vacation.
When she showed up for work, the Manager reviewed the rules of conduct with her and told her that since she was fit for work, she must be responsible and accountable for her actions. She was told: "any types of disrespectful workplace behaviour will be dealt with in a disciplinary manner".
Sometime after this meeting, she was asked to return her keys to various doors without explanation.
On January 24, the Grievor contacted her union and filed a grievance. A few days later, she filed a complaint with the Alberta Human Rights Commission alleging sexual discrimination.
On February 4, the City replied to the grievance saying it was "...satisfied that management acted appropriately".
Eventually, the Grievor left work never to return on August 3, 2011. A few days later, she was admitted to hospital due to suicidal thoughts. Psychologist assessments tendered at the arbitration said:
... the sexual assaults and their aftermath are the primary causal factor in (the Grievor) having developed most of the psychological difficulties described in the preceding section of this report
all of the incidents listed by Mr. Johnson have negatively affected (the Grievor's) functioning, exacerbating and extending the psychological difficulties described above
prognosis is very guarded
psychological functioning will improve to some extent when the arbitration process is brought to a close, and (she) is not repetitively triggered by this process.
...will require extensive treatment in order to improve her functioning.
What did the employer do?
Just about everything that happened after the Grievor reported the November sexual assaults is an example of what you should not do as an employer. As the arbitrator said:
... [the harasser's] conduct is only the first of a number of serious missteps carried out by those charged with the obligation of protecting and supporting an employee harassed and abused in the workplace. The City's Policy specifically sets out Leadership responsibilities ... Those leaderships responsibilities include 'taking appropriate action in a prompt, impartial and confidential manner when Respectful Workplace Policy issues come to your attention', 'supporting all parties involved in resolving issues under the Respectful Workplace Policy', and 'making sure no person suffers reprisal as a result of making a complaint, or for providing information'.
Instead, the arbitrator said, "the Grievor was treated as a problem to be managed, as opposed to a victim to be supported, and it is that treatment which contributed significantly to the ultimate state in which the Grievor finds herself".
Here is a summary listing of 'what they did wrong' as taken from the decision:
- Instead of immediately investigating the alleged assaults, the Manager left on vacation and left the abuser in charge.
- The second Manager, who found her "evidence was
- did not remove her from the workplace or take any steps to ensure there were no reprisals until rat poison was spread on her keyboard;
- failed to complete the investigation into the rat poison allegation;
- took offence when she complained about her safety and minimized the issue;
- counselled her for being "disrespectful";
- sent her for an IME with a psychiatrist and when she refused to
go through with the IME;
- required a "fitness to return to work certificate" even though she was on vacation and had not claimed she was sick; and,
- when she returned from vacation, reviewed the "rules" with her and counselled her that any disrespect would result in discipline.
- She was only removed from the worksite when her doctor said she had to be removed and the Union intervened, but then, she was only transferred to a temporary ad hoc location that caused additional stress.
What does this mean for employers?
An employer's first line of defence against a harassment or discrimination lawsuit is a prompt, impartial and well-documented investigation that results in appropriate action being taken without undue delay or further hurtful events occurring. If an employer has taken the time to implement a clear policy, it must also follow that policy.
Red flags signalling the need for an investigation should arise when an employee complains about something that causes a "reasonable person" to conclude that something was wrong whether or not the employee specifically identifies an individual. Once a supervisor or member of management is aware of allegations, the employer must conduct an investigation of some kind. And, if a manager has "doubts" or questions the "legitimacy" of a complaint, it may be time for him or her to call in another individual from Human Resources or a manager trained in conducting internal investigations to take the "story" from the individual complaining.
As can be seen from this decision, sexual harassment and discrimination claims pose a significant liability risk. Take the time to understand the law, clearly articulate and communicate your workplace harassment and discrimination policies to the workplace, train employees and supervisors in human rights principles and follow proper protocol for investigations. Allow for open and honest communication on these issues in the workplace.
Employers should never blame the victim, condone other employee's treatment of the victim as an internal "rat", or discipline the victim because she or he is being "disrespectful" of co-workers by asserting a workplace right.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.