While you’re here, you may wish to attend one of our upcoming workshops:
Basic Workplace Investigation Techniques
While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
Interviewing witnesses can be the toughest part of an investigation, and sometimes our whole case hangs on the information that we may obtain from them. In this workshop, we help to shed light on the challenges we face when interviewing witnesses and provide strategies for dealing with them.
What makes a bystander tick? Why would someone who witnessed workplace harassment or discrimination, but who was not themself subject to it, complain? What would compel that person to intervene in an ongoing situation? What prompts someone to make an anonymous call to alert their employer of problematic workplace behaviour? A recent arbitral case, The Corporation of the City of Brampton and The Brampton Professional Firefighter’s Association, Local 1068 International Association of Firefighters (2016 Can LII 87624 (ON LA)) may give us some clues.
City of Brampton revolved around a conversation between a male firefighting captain and a female firefighter at a Christmas party. During this conversation, the firefighter told the captain that she was going to be transferred to his station. In her account of the events, the captain responded by saying that if she were to be transferred to his station, she would be raped and impregnated. The captain acknowledged having made an inappropriate comment about her getting pregnant but, denied the threat of rape.
Following an internal investigation, the employer found that the captain had threatened the firefighter with bodily harm and discriminated against her based on gender. As a result of this conclusion, the captain was terminated for cause.
At arbitration, the arbitrator concluded that, while the captain had engaged in misconduct worthy of serious discipline, the severity of the discipline imposed was too high.
What occurred between these colleagues, and how the employer responded, is interesting in and of itself, and was the subject of our January 2017 Workplace Investigation Alert. However, what makes this case particularly illuminating is how actively various other people within this workplace responded to the incident. Indeed, although the words “bystander” and “intervention” are not used in this decision, a careful reading of Arbitrator John Stout’s recitation of the facts, reveals that no fewer than four people who were not parties to the contentious conversation intervened on behalf of the female firefighter. These interventions were as follows:
- At the Christmas party, a male firefighter overhead the exchange between the captain and the firefighter and interrupted the conversation to inform the captain that he was being inappropriate. This interjection had the effect of temporarily stopping the behaviour as the female firefighter turned around and began conversing with others.
- When the conversation resumed and intensified, another fire captain stepped in, removed the offending captain and eventually drove him home. He apologized to the firefighter on the offending captain’s behalf and checked to see if she was okay.
- Following the Christmas party, another firefighter complained to the District Chief about the captain’s comments.
- Finally, two weeks after the Christmas party an anonymous tip was passed on the City about the events in question.
From our perspective, the fact that anyone stepped in on the firefighter’s behalf at all is highly significant, not to mention the number and range of intervention strategies applied. This is because, in our practice, we frequently encounter situations where employees are aware of problematic behaviour being exhibited towards their colleagues but take no initiative to do anything about it. In fact, we are sad to report that in our experience, this is the norm.
In many cases, we have observed that the disincentives to intervening on behalf of a co-worker overwhelm an employee’s willingness or resolve to right a workplace wrong. Among other things, potential bystanders are concerned about the impact of intervening on their relationships or the potential for reprisal. Other employees simply will not act based on an assumption that others will step-in (the so-called “Bystander Effect”) or a reluctance to insert themselves into a situation that may be uncomfortable, unpredictable or both. Still others are employed in institutions that have a strong “anti-snitch” bias, and intervening on behalf of someone else, or reporting on behalf of someone else, would be regarded as a huge betrayal.
In the City of Brampton case, the bystander interventions are incidental to the subject of the grievance and so we are not provided with much insight into why the people did what they did. As such, we are left to speculate as to the factors that might have been at play for these individuals to behave in an unpredictable way.
Could it be empathy? According to the decision, the firefighter who reported the Christmas party comments to the District Chief did so because he had two daughters and would not want them to be subjected to the kind of talk exhibited by the captain.
Was it climate? The Christmas party in question took place in December 2014. At the same time, the CBC/Ghomeshi case featured prominently in the news, as did reports of the Dalhousie dentistry scandal. Perhaps this coverage heightened the firefighters’ awareness of the issue and inspired them to take action.
Did they receive on point training? We are left wondering whether these firefighters had received special training in bystander intervention, or had they recently received respect in the workplace instruction so that it was still fresh in their minds?
Was it a reversal of the “Bystander Effect”? Although the “Bystander Effect” logic would suggest that people may be more likely to intervene when they are alone than in a crowd, some research indicates that this is not always the case. The presence of others can actually increase a person’s “public self-awareness” (i.e. when people focus on the impression they make on others) which can, in turn, prompt them to take bystander action where they might otherwise not have done so. It is possible that the presence of the crowd at the Christmas party was what inspired the firefighters to intervene.
As employers struggle to identify and address problematic workplace behaviour before it reaches systemic levels or is driven underground, City of Brampton reminds us that there is a community of invested and committed allies in this quest that has largely gone untapped… employees. Through bystander action, employees can play an invaluable role in snuffing out problematic workplace behaviour. As such, employers who are truly committed to providing work environments that are free from discrimination and harassment must learn to harness the power of the bystander. This case gives us some clues in terms of how that might be done.
Janice Rubin and Megan Forwad
About the Author: Toronto Employment Lawyer, Janice Rubin, is a co-founder and co-managing partner at Rubin Thomlinson LLP. Janice regularly appears on Best Lawyers and Leading Practioners lists in Canada and is considered one of the country’s foremost experts on employment law.
About the Author: Toronto Employment Lawyer Megan Forward develops and delivers training sessions for her clients and conducts investigations and workplace assessments to help employers resolve issues related to harassment, poisoned workplace environments and bullying.