Lessons from a workplace harassment investigation gone wrong

Read: 60% of Canadians report experiencing workplace harassment: survey

After one botched workplace investigation that found little wrongdoing on the supervisor’s part and a thorough one that found a great deal of harassment, the City accepted liability for the employee’s injuries, acknowledging its responsibility for employees’ behaviour in violation of their collective agreement.

In April 2018, nearly five years after the driver’s troubles began, an Alberta grievance arbitration board awarded her $75,000 in general damages, plus lost wages for the entire time she was on disability.

“This is a tragic story,” the board wrote in its decision, Corp. of the City of Calgary v. Canadian Union of Public Employees Local 37.

Lessons learned

“It is a case that screams out for lessons learned,” says Casey Dockendorff, a partner at Filion Wakely Thorup Angeletti LLP in London, Ont.

The first lesson is the importance of well-trained management. Not only did the foreman and supervisor fail to step in when other employees harassed the driver, but they joined the “gender-based ostracism” as well, the arbitrators found. Furthermore, the supervisor invited the driver to what he said was a work event, which turned out to be a date, and insisted on discussing a possible promotion in a pub.

When an organization first introduces female employees into a male-dominated environment, it’s “an appropriate time to proactively engage in some training of these managers,” says Dockendorff.

Read: Create gender diversity in the workplace

According to the Australian Human Rights Commission, this could involve communicating the business case and strategy for gender diversity to all employees, ensuring senior leaders show their support of women in non-traditional roles and rewarding leaders who champion diversity in the workforce.

As well, superficial interactions between men and women in male-dominated workplaces can increase gender stereotypes, according to a study in the journal Social Sciences. On the other hand, acquaintanceship, which involves sharing personal information with and befriending colleagues of all genders, has the potential to change employees’ attitudes and thereby reduce prejudice, the study found.

Get to the heart of the matter

The case also demonstrates the importance of well trained workplace investigators, says Dockendorff.

A human resources employee for the City of Calgary, who conducted the first investigation in the summer and fall of 2015, concluded that the supervisor used inappropriate language but that none of the driver’s other allegations were supported. While he did interview the driver and her supervisor, he didn’t speak with any co-workers who might have corroborated the story. He didn’t even follow up with any of them after he read their written statements.

Read: 40% of employers take reactive approach to workplace harassment: HRPA

The second investigation, conducted by another City employee in January 2017, involved interviews with four co-workers. It found the supervisor had promoted unsafe driving practices and an unhealthy work environment.

“The investigator is supposed to be the one who is trained and who has the knowledge of how to do this,” says Dockendorff. “The participants in the workplace investigation likely have very little experience. They may need a reminder.”

Furthermore, when the driver told the first investigator she had recordings of conversations with her supervisor but didn’t want to give them to him, he didn’t ask if he could at least listen to them.

“To be aware that there were recordings and to do nothing with that information is a bit of a problem, particularly given the probative value that something like that is likely to have in terms of showing whether there was bullying and harassment or not,” says David Woolias, an associate at Harris & Co. LLP, a management-side employment and labour law firm in Vancouver.

Read: What does the film industry’s #metoo moment mean for employers?

Due to the flaws in the first investigation, the harassment continued for a total of 18 months. If that investigation had been more effective, the driver wouldn’t have suffered so much and the City would likely have been liable for significantly less, notes Woolias. Nevertheless, “you can be sympathetic towards the investigator,” he says. For many human resources employees, such investigations are just a small part of their job.

He recommends employers turn to outside investigators if a senior manager or a human resources employee is the subject of the investigation, or if the organization lacks expertise.

“This is the sort of case where I would think [an external investigator is not necessarily required],” says Woolias, noting large municipalities should have some capacity to conduct workplace investigations. “This isn’t one that raises those flags. It was just, in these particular circumstances, it didn’t work out.”

Don’t dodge responsibility

While $75,000 is a high award, Woolias suspects it could have been even higher had the City not immediately accepted responsibility. “The City clearly indicated it knew what ought to have happened and recognized it hadn’t happened in this case,” he says. “And that, I think, played very well with the arbitrators.”

Read: Tips for preventing sexual harassment in the workplace

The City of Calgary also shared with the arbitrators its newly developed strategies for preventing this kind of harassment from recurring. These include: requiring new employees to review the respectful workplace policy during orientation; adding training for all employees about the practical differences between respectful and disrespectful behaviour; creating a Women in Transportation Network to address issues facing women working in male-dominated environments; and providing more training to managers about their responsibilities.

Harassment and discrimination can present significant challenges to all organizations, the arbitrators wrote in their decision. “It is clear to us that despite the very serious failure in the [driver’s] case, the City is attempting to be a leader in this area.”

Sara Tatelman is a Toronto-based freelance writer.