Workplace harassment findings get serious

University tribunal hands down sanctions against senior staff for harassing junior faculty

A recent precedent-setting decision of a tribunal assembled by McMaster University in Hamilton, Ont., to hear serious allegations of harassment in the workplace demonstrates that harassment complaints have traction and can attract serious consequences in a post-Bill 168 world — and outside of human rights legislation.

Two complaints were brought before the university tribunal. A group of complainants included seven faculty members and one staff member who alleged that six other faculty members — who were senior and mostly tenured — had harassed and discriminated against them and were responsible for a poisoned academic and work environment that existed at the business school. The complainants — all without tenure at the university — further alleged they had been the subject of vexatious comments and conduct and the alleged harassers had used their positions to negatively impact the complainants’ careers and negatively influence the work environment. The hearing before the tribunal produced 2,694 documents and 65 witnesses over three months with 21 extended hearing days.

The tribunal found that each individual accused harasser had engaged in comment or conduct that repeated breached the McMaster University Anti-Discrimination Policy. The breaches of the policy were largely made possible by the power held by the senior staff relative to the complainants. The breaches of the policy and instances of harassment perpetrated by the individuals against the complainants included various comments and conduct as well as — most shockingly — negatively interfering with the career progression, including the tenure and promotion process, of the complainants, who were perceived supporters of the senior administration.

As a result of the findings, the tribunal handed down the following sanctions to the harassers:

• Although termination of employment was seriously considered by the tribunal, it ultimately recommended suspensions — lengthy for three of the harassers and reduced for two of them — without pay, benefits, privileges or access to the university’s premises during the suspension.

• A formal written reprimand for a sixth harasser and the tribunal’s decision to remain in the individual’s record for five years.

• Immediate removal from positions of authority where the harassers could potentially affect the terms and conditions of employment of anyone in the faculty, as well as a prohibition from holding any such position for a minimum of five years.

• Mandatory sensitivity, harassment and conflict resolution training for all the harassers.

The tribunal noted that, although the complainants often felt like they were being treated inappropriately, at the time they did not have specific knowledge or proof of the extent of the ulterior motives and mistreatment. This meant their concerns were not easily articulated and also would not have been reasonably apparent to a third party.

Workplace harassment taken seriously

It is definitely not an easy task to stand up to harassment and bullying in the workplace, especially against those people who are in a position of power. The complainants in this case stood up to the harassment and bullying against them by colleagues who were in much senior positions, and the conduct to which they objected was found to be unlawful and poisonous to the workplace. The tribunal’s decision highlights that triers of fact will scrutinize allegations and the context around them very carefully in order to determine whether harassment and a poisoned work environment exists, and serious steps will be taken and penalties imposed where necessary to prevent the harassment from continuing.

While McMaster University was also named as a respondent, the tribunal found that the university had not engaged in harassment or malicious behavior and it reacted to the alleged harassment as issues arose. The university took steps to address harassment in the workplace to prevent such harassment from occurring again, leading the tribunal to forego any decision against it as an employer.

Sarah Vokey is an employment lawyer with Robinson Heeney LLP in Toronto, focusing exclusively on representing employers and employees in all areas of employment law as well as conducting workplace investigations. She can be reached at (416) 646-5169 or svokey@robinsonheeney.com.

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