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Investigating Complex Cases
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Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
A November 2017 BC Human Rights Tribunal decision shines some light on how investigations into harassment complaints are conducted at the Vancouver Public Library (VPL). The decision, Hawknes v. Vancouver Public Library (No. 2), 2017 BCHRT 250, is the second of two procedural decisions involving allegations of harassment, discrimination and failure to accommodate in employment. This post focuses on the harassment complaints.
The Complainant, Ms. Nattanya Hawknes, an employee of the VPL, alleged that she was harassed by a security guard, who was her colleague as well as a patron who was a member of the public. She further alleged that VPL discriminated against her by not keeping her informed of their investigation into the security guard related incident and that the VPL’s response to the incident with the patron exposed her to further harm.
Harassment complaint against security guard
The decision sets out the facts related to the security guard incident as follows:
- In early October 2015, there was an interaction between the Complainant and a security guard that included reference to having a drink together after work, allegations of inappropriate touching and ogling which made the Complainant uncomfortable.
- The Complainant prepared a written incident report which VPL investigated. The investigation included a written response by the security guard (respondent) and interviews of the Complainant and the security guard[i].
- The investigation concluded that the security guard did ask the Complainant for a date but his actions did not amount to harassment since he offered to apologize and he was reminded about his responsibilities under the VPL’s Human Rights and Harassment Policy.
While not conducting an appeal related to the conduct of the investigation, the Tribunal member nonetheless had to consider whether “there is any reasonable prospect that Ms. Hawknes’ version of events, if found to be true, could be sexual harassment contrary to the Code [the BC Human Rights Code].”[ii] After a review of the relevant case law, the Tribunal member disagreed with the Complainant that unwelcome conduct linked to the prohibited ground of sex is prima facie harassment. Since the onus was on the Complainant to prove that she had suffered an adverse impact in relation to their employment the Tribunal member had to consider the evidence provided by the Complainant. In this case, the Tribunal member held the complaint of harassment did not have a reasonable prospect of success because the behaviour didn’t continue and the Complainant did not provide evidence that she suffered an adverse impact in relation to her employment.
With respect to the allegation that VPL’s response to the complaints of harassment constituted discrimination, the Tribunal Member found that this allegation also did not have a reasonable prospect of success. This was based on the principle in Hinds v. Canada (Employment and Immigration Commission) that the employer’s response must be proportionate and is fact specific. Specifically, the Tribunal member found that the fact that the security guard continued to be scheduled during similar shifts was not proven to have had an adverse impact on the Complainant’s employment. Considering the Tribunal’s earlier findings that there was no evidence related to power dynamics between the parties and the conduct was not egregious in nature, the Tribunal concluded the VPL’s response was not discriminatory conduct.
Harassment complaint against patron
The decision sets out the facts related to the patron incident as follows:
- The Complainant submitted in writing that a patron stared at her and commented on her clothes while staring at her chest.
- Her complaint was also made verbally to a supervisor who described feeling bullied and intimidated after the Complainant interacted with him about her complaint.
- VPL said the patron had a brain injury and was subject to accommodations with respect to ‘holds’ on items.
- The patron complained about the Complainant being abrupt during the first incident.
- A second interaction took place and the Complainant walked away rather than serve the patron.
- An investigation took place which considered the interactions with the patron, the supervisor and an earlier one with a different patron.
- Prior to meeting with the patron, the Complainant, with her union representative present, was provided with coaching and “strategies around patrons”[iii].
- The Complainant went off work shortly after the coaching discussion.
- A discussion took place with the patron about expectations for behaviour and he apologized if he had unintentionally hurt the Complainant.
As with the complaint about the security guard, the Tribunal member had to consider if there was no reasonable prospect that the complaint would succeed. The Tribunal member concluded that the complaint had no reasonable prospect of success because:
- Limited evidence was provided, in particular about the adverse impact the coaching session had on the Complainant based on a prohibited ground of discrimination.
- The failure to ban the patron was not discriminatory to the Complainant since the VPL also had human rights obligations to the patron and needed to have a proportionate response.
- The proportionate response was achieved through provision of protocols that allowed the Complainant to work in a harassment free workplace while also allowing the patron with a disability to access a publicly available service.
In the result, the Tribunal member also dismissed this aspect of the complaint.
Good policies ensure compliance with human rights
VPL’s Human Rights and Harassment & Respectful Workplace policies contain key elements of good workplace policies. They set out the objective of the policy, who it applies to and key definitions including ‘harassment’, ‘respectful workplace’ and ‘disrespectful conduct’ with an appropriate number of examples. Roles and responsibilities for the VPL generally, its’ departments and its’ employees and how incidents and complaints are to be investigated and resolved is also set out.
A key takeaway from Hawknes v. Vancouver Public Library (No. 2) is that having a good policy about harassment and workplace response, including mechanisms to investigate complaints, can provide a solid defence when dealing with a human rights complaint against your organization.
About the Author: Vancouver-based workplace investigator Fiona McFarlane conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, privacy breaches and other problematic workplace behaviour. Fiona also provides workplace investigation and human rights training to staff at all levels.
[i] Paragraph 130 sets out the timeline as follows:
- The alleged incidents took place on October 9 and 10.
- Investigators met with Ms. Hawknes and her representative on October 20.
- Investigators met with the security guard on October 23.
- On November 12, the Library met with Ms. Hawknes to advise of the outcome of the investigation.
- On November 13, the Library met with the security guard and reminded him of his obligations to ensure a safe and respectful workplace.
[ii] Paragraph 119.
[iii] Paragraph 51.