When it comes to sexual harassment in BC, employees are protected by the Occupational Health and Safety regulations (WorkSafeBC) and the B.C. Human Rights Code. Though these laws are put in place to address workplace bullying and harassment and protect individuals against sexual harassment, at times it can be difficult to distinguish between acts of sexual harassment and misconduct in the workplace.
An example that demonstrates the factors that are considered when distinguishing between the two is a labour arbitration involving a relationship between a subforeman and an apprentice, employed by BC Hydro, that took place in 2015; the arbitration decision was made recently, on September 11, 2020.
The Back Story
The subforeman, a male employee of 17 years, was in charge of supervising the female apprentice and the two often worked alone together. A personal relationship between the employees began when they shared their recent experiences of failed relationships and found emotional support in one another.
This personal relationship became more sexual when the apprentice sent the subforeman a photo of her midriff and shared flirtatious and sexual texts with the subforeman, launching what was soon to become several acts of sexual (mis)conduct at work.
The apprentice performed sexual favours for the subforeman at work on many occasions, at times more than once a day. She testified these sexual favours were performed at the subforeman’s request and were always one-sided.
Both employees admitted to taking part in these acts, but these sexual favours were not the main driving forces behind the apprentice’s feelings of discomfort, and in turn, her decision to make a complaint. One major incident that led the apprentice to the realization that she was involved in an “unbalanced relationship that no longer felt consensual” was when the pair took part in anal sex at the subforeman’s home. This incident drove the apprentice to put an end to the relationship. The subforeman, however, contested that the apprentice was “willing and enthusiastic”.
It is important to note that the complaint against the subforeman was not filed or investigated for more than 2.5 years following the incidents that took place in the workplace.
The subforeman’s Power System Safety Certification was revoked and he was terminated on December 4, 2018 for sexual harassment of a female apprentice and failing to report the intimate relationship which violated BC Hydro’s Respectful Workplace Policy and Code of Conduct. This came after the employer hired an independent investigator in August of that year.
The subforeman grieved this decision on the basis that termination was an excessive discipline measure and that a period of suspension would be more appropriate. His representative union wanted him reinstated and to have his certification restored.
What the Arbitrator Decided
It was up to the arbitrator to decide whether or not the subforeman committed sexual assault, if the termination from employment was excessive and whether or not the penalty should be substituted.
When assessing the facts of the case, the arbitrator “had little evidence to work from as the relationship took place five years ago”. In such cases, to the burden is on the employer to use clear, cogent and convincing evidence to prove facts.
It was held that the subforeman’s termination was just, as his sexual activity at work constituted outrageous misconduct. However, the arbitrator did not have sufficient evidence to prove the apprentice had been coerced and deemed the acts as consensual. The arbitrator ruled the revocation of the subforeman’s certification excessive.
Don’t Let This be You
Harassment in the workplace disrupts the work environment and leads to many unwanted results including, but not limited to:
- Reduced productivity
- Erosion of employee loyalty and commitment
- Increase health risks to the employee and increase workers compensation and healthcare claims
- Costly legal issues
- Erosion of the employer brand through negative publicity and public image
- Increased absenteeism and turnover
“Workplace harassment affects nearly 1 in 5
Canadian women, and 1 in 8 men.”
As employers, we have a great responsibility to protect the health, safety, and well-being of all our employees in the workplace and while carrying out the duties of their job. While we don’t always have the power to indefinitely prevent these types of occurrences, we can and should put in place policies and procedures to prevent and address them. The following actions must be taken by employers to do their part, as per the Worker’s Compensation Act:
- Develop a policy statement on bullying and harassment
- Take steps to prevent or minimize bullying and harassment
- Develop and implement procedures for workers to report incidents and complaints
- Develop and implement procedures for dealing with incidents or complaints
- Inform workers of the policy statement and steps taken to prevent bullying and harassment
- Train supervisors and workers
- Annually review your policies, prevention steps, and procedures
- Do not engage in bullying and harassment of other workers
- Apply and comply with the employer’s policies and procedures on bullying and harassment
Remember, prevention is more beneficial and cost-effective than intervention or mediation! To assess your preparedness for preventing and reacting to such cases, you should ask yourself if you have:
√ A policy statement on bullying and harassment
√ Steps in place to prevent or minimize bullying and harassment
√ Procedures for workers to report incidents and complaints
√ Procedures for dealing with incidents and complaints
√ Communicated your policy statement and prevention steps to employees
√ Training for supervisors and employees
√ An annual review of your policies, prevention steps, and procedures in place
√ Refrained from engaging in bullying and harassment of other employees
√ Applied and complied with your own policies and procedures on bullying and harassment
How We Can Help
Incidences involving workplace harassment can be extremely fragile and require a meticulous and careful investigation process that is required by law. Consultants at HR West have extensive workplace investigation experience and remain up-to-date on current WorkSafeBC expectations and the Human Rights Code. We provide organizations with impartial and neutral third-party reporting and investigation services that shield them from liability and protect their workforce.
We also assist employers by developing policies and procedures specific to their operations and in line with current legislation.
Original case: https://www.canlii.org/en/bc/bcla/doc/2020/2020canlii76271/2020canlii76271.html?searchUrlHash=AAAAAQCXIEJyaXRpc2ggQ29sdW1iaWEgSHlkcm8gYW5kIFBvd2VyIEF1dGhvcml0eSB2LiBJbnRlcm5hdGlvbmFsIEJyb3RoZXJob29kIG9mIEVsZWN0cmljYWwgV29ya2VycywgMjU4IChUZXJtaW5hdGlvbiBHcmlldmFuY2UpLCBbMjAyMF0gQi5DLkMuQS5BLkEuIE5vLiA3OAAAAAAB&resultIndex=1#_bookmark0