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Workplace harassment allegations are a serious business for unions, not just because of the consequences of harassment itself, but because the union is forced to walk a thin line, on either side of which there might be significant liability.
Unfortunately, the law has not been entirely clear about how unions can safely and confidently navigate this territory. However, a recent award from arbitrator Pamela Picher does provide a road map that highlights some issues.
The first obligation of the union is to emphasize the employer's obligations to deal with harassment allegations properly. In Canada Post Corporation and CUPW (Racky) , Picher laid out some pretty good ground rules for unions and employers. Three areas are particularly important to unions: the investigation, duty to accommodate and reprisal.
One of the most instructive things about the Canada Post case is the way the arbitrator dealt with the employer's investigation. The employer investigated the allegations, interviewing a large number of witnesses, including the complainant and the accused supervisor. The employer concluded the harassment was not proven.
What the employer failed to do was to observe the requirements of "procedural fairness" in the investigation-rules normally observed by human rights commissions. Although the investigator acted "in good faith," she came to her conclusions without giving the complainant an opportunity to review and respond to the statements of witnesses, or to provide her own corroborating witnesses. Leaving the complainant out of the loop like this made the investigation unfair, illegal and contrary to the collective agreement.
The employer never believed the grievor's allegations, so it refused her requests for transfer. As a result, the grievor suffered health problems and a long absence from work. The employer's refusal to deal with the situation in the interim was found to be a breach of both its duty to mitigate the effects of sexual harassment and its duty to accommodate the grievor.
Employers have an obligation to provide a safe and harassment free workplace. Sometimes they aren't aware that harassment is going on, and liability may be questionable. But once they are made aware, they have an obligation to act quickly to mitigate the effects of the alleged harassment. At a minimum, an employer must ensure that the complainant is not forced to work with the alleged harasser. Unions can play a role in this process, pressing the employer to accommodate a complainant.
In the Canada Post case, the employer was found to have made a number of reprisals against the grievor. Reprisals are all too common, and unions need to be on the lookout for unlawful responses to harassment allegations. A reprisal is illegal even if the original complaint is unfounded. For example, if an employee feels that he or she has been sexually harassed and makes a complaint, but the complaint is found to be baseless, an employer cannot fire or punish the employee for complaining.
One reason reprisals happen so often is that unfounded harassment complaints can generate bad feelings, and a vindicated supervisor may feel entitled to take some action against the complainant. Reprisals are illegal and contrary to a collective agreement, even if the complainant appears to have been in the wrong.
The Canada Post award provides some direction in dealing with harassment allegations, but the law is not yet entirely settled. So for now, caution, care and legal advice are probably the most important things to remember.
Tim Gleason practises law with Sack Goldblatt Mitchell in Toronto. For more information on labour law issues, visit the firm's web site at www.sgmlaw.com
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