Canadian HR Reporter

January 26, 2015

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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Canadian HR RepoRteR January 26, 2015 2 News Recent stories posted on Check the website daily for quick news hits from across Canada and around the world. web O n t h e Across cANAdA Fired CBC radio host Jian Ghomeshi faces 3 new sexual assault charges 3 new alleged victims come forward Canadian publications defiant in wake of attack in France But 'it can be dangerous to publish,' says professor B.C. expecting 1 million job openings to 2022: Report Migrants predicted to fill one-third of openings Citizenship and Immigration documents note TFWP could hurt youth unemployment rate: Reports Young people on 'working holidays' heat up competition for jobs ArouNd the world U.K. firms step up hiring of permanent staff in December: REC But growth in starting salaries eased slightly U.S. jobless claims dip; 2014 layoffs lowest in 17 years Weekly jobless claims fall by 4,000, slightly less than expected United Airlines attendants claim they were fired over their security concerns 13 attendants fired for refusing work they considered unsafe Suspected Islamists kill 12 in Paris attack on satirical magazine Charlie Hebdo opened fire on editorial meeting: prosecutor What's in your CEO's wallet? Robert Levasseur, senior consultant and principal at Mcdowell associates, sat down with Canadian HR Reporter tV to discuss some of the most significant challenges around executive compensation. Featured Video No one ever expects to have cancer. When it strikes, having CAREpath as part of your benefit package shows your employees and their families how much you really care. Employees diagnosed with cancer are assigned a personal oncology nurse providing guidance and support throughout every stage of their cancer journey. CAREpath is the only complete cancer navigation provider in Canada. No one ever expects to have cancer. cancer? Does one of your employees have We'll be there. 1-866-599-2720 THE CANCER ASSISTANCE PROGRAM Anita McGowan, RN, CON(C), OCN Head Oncology Nurse Manager enced similar harassment, he said. "at results, potentially, in a loss of control for many complain- ants, which is not only upsetting for the complainants but can lead to a chilling effect," said Pinto, as people might not realize that if they bring something to HR's at- tention, it could result in such an investigation. And the people on the receiving end in the organization have to be very mindful of these dynamics, he said. "e consequences to every- one involved can be far-reaching and… even career-limiting for the respondent, which is not some- thing that all complainants want." Maintaining confidentiality Maintaining confidentiality is a tricky part of the equation, ac- cording to MacLeod. "All you can say to somebody who you're interviewing is 'We will keep this confidential to the extent that we can but if it goes to a hearing, you're going to be com- pelled to testify and it's not going to be confidential anymore.' So that's the reality of it." In British Columbia, newer WorkSafeBC and occupational health and safety obligations are making investigations more chal- lenging when it comes to confi- dentiality, according to Marino Sveinson, a partner in the labour and employment group at Bull Houser in Vancouver. "When you go and inject into it obligations on employers to treat bullying and harassment as a safety hazard just like any other hazard in the workplace and you impose obligations to investigate, then the question becomes: Are the exact same obligations that are built right into the regulations as statutory law, do they apply, which includes involving the joint health and safety committee?" A recent ruling by the Que- bec Court of Appeal, Ditomene v Boulanger, also highlights the complexities of investigations. College teacher David Ditomene was accused of psychological ha- rassment by two colleagues, so an outside investigator, Louise Bou- langer, was hired to look into the matter. But Ditomene, who was eventually fired, was unhappy with how Boulanger handled the case and sued for moral damages for pain and suffering. Basically, he felt he should have been given more time to respond to the allegations and he should have been given an original copy of the complaint, with the names of all participants — as per the employer policy — but Boulanger chose to give him a summary, said Marie-Josée Bélainsky, a lawyer with the Professional Liability Insurance Fund at the Barreau du Québec in Montreal. "e investigator… was of the opinion that legally that was a mistake (in) that policy because it was contrary to the law. So she interpreted the policy in saying she could not give that to him," she said. "And the Court of Appeal is… saying that… the investigator should use judgment with re- spect to the wording of the policy and… what was important is that (Ditomene) should have obtained all the allegations of the complain- ants. And he got it." Having read a digest on this decision, Sveinson said the out- come seems to be there's a lower standard of procedural fairness for a harassment investigation in an employment context than there is at an administrative tri- bunal or a professional body. "It's not a perfect procedural fairness legal standard." Internal v. external investigations Whether a complaint should be handled internally or contracted out to an outside investigator should be decided on a case-by- case basis, said MacLeod. If some- one is a serial complainer, you don't want to spend thousands of dollars on an external person, he said, but if there's a complaint against the CEO and the poten- tial for PR fallout, HR may want to bring in an experienced, and expensive, investigator. A lot of workplaces don't have HR staff or if they do, they lack the expertise and confidence to handle such an inquiry, said Sveinson, who said he is see- ing more investigations skill set training seminars. "Whether it's harassment or anything else, that seems to be the fundamental skill set that is need- ed in the workplace these days be- cause it takes a bit of experience, it's a different thing to really know, if you're starting out — are you carrying this out, doing enough and making some judgment calls along the way." Employees accused of bad behaviour may also request they have a lawyer or another representative at the interview and, again, this should be dealt with on an individual basis, said MacLeod. "If you've got the serial com- plainer and it looks like there's not much meat on the bone, why unduly complicate what really is a pretty simple investigation by allowing a lawyer or even a co- worker to come in or a parent or whatever?" But if the investigation con- cerns a senior executive, there's more at stake, he said. "Let's say this person has built up a 30-year career and has a stel- lar reputation and this allegation could tarnish their reputation for- ever. In that case, you may want to let the person bring their own lawyer in and make sure the in- vestigation is… like the Cadillac investigation." Self-incrimination concerns But participants may have con- cerns about their involvement in the process. e Canadian Media Guild (CMG), for example, has expressed concerns about the investigation by Rubin at CBC, telling members any information they share could be used against them. "Rubin's recordings may be… provided to CBC management and relied on by management to discipline the employee being in- terviewed. CMG has been unable to receive assurances against self- incrimination and cautions that the contents of these interviews could be used as the basis for dis- ciplining the person making the statements," said Marc-Philippe Laurin, president of the CMG branch at CBC, in a statement. The Rubin investigation is a more difficult one because it has a dual purpose, looking both at Ghomeshi's conduct and what people may have known, said Pinto. "If CBC management deter- mined that there was some re- sponsibility to report something and someone didn't, then of course that is the concern that's being highlighted by the Canadian Media Guild here." If leaders were aware and didn't act, they could very well be disci- plined, said MacLeod. "Assuming one of their job duties is to administer the com- pany policies and they're aware that the policy prohibits sexual harassment and they didn't do anything, they may have some problems." Quebec ruling highlights complexities hArAssmeNt < pg. 1 "e investigator… was of the opinion that legally that was a mistake (in) that policy because it was contrary to the law."

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