Rubin Thomlinson, Author at Rubin Thomlinson

Understanding the reader: A lesson in report writing

September 30, 2019 (September 21, 2020) by Rubin Thomlinson

I began my legal career as a young litigation associate in private practice and like many lawyers, found the first few years tough. The hours were often long, the timelines tight and the pressure to produce perfect work was constant. At the time, it was difficult to see why I was putting myself through this and eventually, I left private practice to become in-house counsel. I reflected upon those years many times after I left and begrudgingly, came to realize that the training I received had served me well over the course of my career. This was especially true of the writing skills I had developed, mostly by preparing court submissions under the supervision (read: scrutiny) of senior lawyers. These lawyers taught me the importance of putting myself in the shoes of the reader, a lesson that has had the most impact on the way I write investigation reports and review the reports of other investigators.

When declaring a complaint to be frivolous or vexatious, employers need to tread lightly

September 24, 2019 (September 21, 2020) by Rubin Thomlinson

Workplace investigations can be hard on parties and employers alike, and the challenges don’t end when the investigation is over. At the conclusion of the investigation, decisions need to be made: What consequences (if any) will there be for the respondent? How will the employer remediate the working relationship? Is it even possible to do so?

A question I often get asked as an external investigator when the allegations turn out to be unsubstantiated is: Does this mean that the complaint was frivolous or vexatious, and if so should there be consequences for the complainant?

Fact or fiction: The truth about workplace mediation

September 19, 2019 (December 31, 2020) by Rubin Thomlinson

Workplace mediation is quickly becoming a sought-after method by which to restore the workplace following an investigation or in some cases to avoid a formal investigation altogether. More frequently, it is being included in the dispute resolution mechanisms and policies in many organizations and institutions. Unfortunately, however, there is still some confusion about what mediation is and what it is not which has led to some resistance in the utilization of the process. Here are some commonly held views which are thought to be fact but are actually fiction.

Think you’re off the hook to investigate? Not so fast

September 13, 2019 (September 21, 2020) by Rubin Thomlinson

As investigators we know that an employer’s duty to investigate – while necessary to ensure a healthy and safe working environment – can also be cumbersome, expensive, and a significant strain on an organization’s resources. When an employee leaves the workplace and then files a complaint of harassment or discrimination, employers can be quick to try and avoid the investigation on the basis that an employment relationship no longer exists. Two recent cases – one from the Ontario Grievance Settlement Board and one from the Canadian Human Rights Tribunal – suggest that employers need to slow down and consider some factors before dismissing a former employee’s complaints.

Investigating the invisible: Examining subtle racial discrimination (Part 2)

September 10, 2019 (December 31, 2020) by Rubin Thomlinson

The concept of a “microaggression” has received significant attention in recent years, and was explored more fully in a previous post. At its core, a microaggression is a subtle, often unintentional, behaviour that is rooted in stereotypes about marginalized groups. Despite the absence of ill will, microaggressions in the workplace can nonetheless amount to discrimination or harassment.

However, the challenge for investigators arises in determining whether a seemingly innocuous comment or action was motivated by a discriminatory stereotype or bias. When examining such allegations, investigators may wish to rely on the broader context and circumstantial evidence in arriving at their conclusions.

Building safety in sport – Lessons in shifting culture

September 6, 2019 (December 31, 2020) by Rubin Thomlinson

I am the Harassment and Discrimination Officer for my community sport club. Unlike my club peers who volunteered for the board of directors or fundraising committee and who are busy organizing weekly bake sales, seeking sponsors and promoting online fundraising campaigns, my volunteer role has required little of my time. But that is likely changing and for a good reason. Amateur sport in Canada is undergoing a cultural transformation, specifically around safety in sport and the creation of a safe environment for all participants, particularly children.

A doctor’s examination, a Tiffany’s necklace, and 3 questions to ask yourself before commenting on a colleague’s appearance

September 3, 2019 (December 31, 2020) by Rubin Thomlinson

When I do respectful workplace training, one of the responses I often hear is, “Does this mean I can’t compliment my co-worker’s hair/clothes/eyes/jewelry?” My answer is always an annoyingly lawyerly one: “It depends.”

A comment that pertains to a colleague’s appearance has the potential to create a welcome personal connection. It can also cause harm. A set of recent decisions from the British Columbia Health Professions Review Board (the “Board”) provides some insight on when comments on a person’s appearance are inappropriate.

Investigating the invisible: Examining subtle racial discrimination (Part 1)

August 23, 2019 (December 31, 2020) by Rubin Thomlinson

Overt racial discrimination, such as a racial slur or derogatory comment, can be easy to spot. However, the difficulty for investigators arises where an allegation of race-based discrimination seemingly does not relate to race at all. As discussed further in this post, such forms of discrimination (often dubbed “microaggressions”) are often manifested through subtle, unintentional behaviours that perpetuate stereotypes about marginalized groups.

The question then arises: how can allegations of subtle racial discrimination be investigated, let alone proven, where there is no obvious link to race? In the case study below, we outline considerations for investigators through the following scenario.

Serious insight for serious situations.