Canadian HR Reporter

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Price subject to change without notice and subject to applicable taxes. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation Perfectbound Published December each year On subscription $77 One time purchase $80 L88804-677 Multiple copy discounts available. Plus applicable taxes and shipping & handling. (prices subject to change without notice) GHOMESHI < pg. 1 Sherrard Kuzz in Toronto. "Hopefully this will be a wake- up call to some organizations out there that there's a big downside to doing that." is situation is by no means unique, said Andres Barker, a lawyer at Kent Employment Law in Vancouver. "Any employer is susceptible to the creation of a toxic workplace by personalities who are not dealt with adequately by management, either through neglect or through turning a blind eye." Detailed investigation e report, prepared by lawyers Janice Rubin and Parisa Nikfar- jam of Rubin omlinson in To- ronto, details their investigation into allegations of inappropriate workplace behaviour on the part of the former CBC personality. The law firm conducted inter- views with 99 people or witnesses, though Ghomeshi himself did not participate. Its release followed an an- nouncement by CBC it had "sev- ered ties" with two executives, including Todd Spencer, head of HR and industrial relations for English services. e report found elements of the star's behaviour consistently breached the "behavioural stan- dard" at the CBC and were deeply disrespectful. For example, the host: was persistently late and consistently disrespectful of col- leagues' time; was scheming, dis- missive, moody, difficult, emo- tionally unpredictable and harshly critical; diminished the role and contribution of others; and played pranks and cruel jokes. Ghomeshi also gave colleagues back and shoulder massages and while most witnesses did not find these sexual (although several did), they did describe them as "creepy" and disrespectful of per- sonal boundaries. Less prevalent but still present was sexual ha- rassment by Ghomeshi, includ- ing flirtation and sharing details about his sex life. However, the law firm found no evidence of a formal complaint made against Ghomeshi. As to why, many employees spoke of a lack of trust and confidence in the complaint process, a sense the workplace was "a sealed unit" and because it was expected they would deal with their concerns internally. "ere was also a pronounced power and status differential be- tween Mr. Ghomeshi and those who worked to support him," said the report. "We noted the pres- ence of many younger employees who were new to the world of work, who were not permanent employees and who were con- cerned with establishing a career. ey were particularly vulnerable, which made them unwilling to complain or 'rock the boat.' ere- fore, we do not find the absence of a formal complaint surprising, nor do we find it suggestive that the events the witnesses described did not occur." Lack of leadership On the leadership side, those who directly managed Ghomeshi were aware of aspects of his problem- atic behaviour, found the report. And there were three separate but missed opportunities to fully in- vestigate: a 2012 "Red Sky Docu- ment" prepared by members of the Q staff that outlined their con- cerns; an email from an inquiring journalist regarding inappropriate behaviour in 2014; and an email from a concerned employee. Yet information tended to be- come diluted as it moved up the lines of power. In some cases, managers failed to inquire any further or take adequate steps to stop the behaviour. "In other cases, despite actual knowledge of concerns expressed by employees, Mr. Ghomeshi's behaviour was often left unexam- ined, characterized as 'difficult' or was accepted as the norm of how hosts were expected to behave," said the report. "We saw no compelling evi- dence that Mr. Ghomeshi was ever told his behaviour would have to improve or he would have to refrain from certain types of behaviour, or else face disciplin- ary action including termination." In addition, the union was at fault, as a member of the Cana- dian Median Guild disclosed her experience with the radio host, but there was no evidence any- thing was done to communicate this information to other union officials or CBC management and HR, said the law firm. Management's failure to act gave Ghomeshi licence to con- tinue, said the law firm. "Had it taken proper steps, we believe that CBC management could have obtained a clearer pic- ture of what was happening at Q. Moreover, Mr. Ghomeshi would have been presented with these allegations, had an opportunity to respond to them, and present his employer with his explanation and perspective." e report also discussed the mentality of a "host culture," where people have big egos, big personalities and big demands, and the behaviour is generally tolerated out of fear. "If you've got your best seller or your CEO or the fellow that earns the highest commission because he or she is charming or whatever it is, it becomes harder to touch — but all the more important that action is taken so that, all the way down the line, the message comes across that this will not be toler- ated," said Ritu Mahil, a lawyer at Lawson Lundell in Vancouver. Even though on paper the host didn't have the right to hire or fire anybody, there was certainly the perception he controlled the em- ployment prospects of the people around him, said Kuzz. "at's where you need to be very careful that if you're going to have a setup where there is that kind of control, I mean, somebody has to be the boss, formally or in- formally — there has to be a series of checks and balances." Complaint process The CBC also suffered from narrow employee survey infor- mation, no adequate system to measure workplace behaviour, generic training, an over-reliance on formal complaints and a lack of comprehensive data to track com- plaints, said Rubin omlinson. Complaints don't have to be formal to be considered com- plaints, said Mahil. "The employer has a posi- tive obligation to maintain that harassment-free environment so if there's any one out there and it makes its way to the employer's ear — the employer, the manager, whoever it is, the supervisor, the foreman in the mill — they've got to deal with it." A cursory inspection of a com- plaint is no substitute for a proper investigation, said Barker. "Had the employer investigat- ed, the deeper workplace issues would have been discovered and ostensibly dealt with." Being willfully blind is not a good strategy, said Kuzz. "You can't hide behind 'Well, I didn't know he was doing this, this and this, I only knew about this,' when the 'this' you knew about ought to have blown your hair back and caused you to do some- thing else to look into it." In an organization large enough to have an HR department, you would expect that kind of infor- mation to get escalated to HR, said Kuzz. "at's where you're going to have one or two people that hear from all of the different manag- ers and can put all of the pieces together." 9 recommendations made in report e report made nine recommen- dations that include conducting spot audit reviews to see if there's behaviour and conduct that's con- trary to the behavioural standard. "at's a really great place for most organizations to start if they think that there's any sense that they have a problem, they want to figure out how to tackle it. You need to figure out a way to get genuine and candid feedback from your folks," said Kuzz. "It's the same when we do audits from an employment standards perspective. If we want to make sure that if we have the ministry of labour show up at the door, that we're good, we have somebody come in and we have them audit overtime and hours of work and vacation pay — why is this any less important?" e report also recommends refreshing workplace investi- gation competencies and data keeping. "Some managers may be tempt- ed to avoid conflict and treat situ- ations as 'one-offs.' However, do- ing so allows systemic problems to bloom and provides no checks and balances," said Barker. "Employers should properly document complaints, follow up on them and ensure that the par- ties understand when a decisive outcome has been reached. is allows for expectations around behaviour to be known and for patterns to be easily identifiable." A confidential workplace hot- line should also be established for complaints, recommended the re- port. But these will only be effec- tive if the tipper provides specific information, said Barker. "Otherwise, the employer is left with no specific allegations to act on or bring to the attention of the accused. In some cases, such tip lines can also be abused, leaving an innocent party feeling unfairly accused of wrongdoing by man- agement. Generally, such lines will be most useful when report- ing on specific acts of misconduct that management can realistically investigate." e report also recommended CBC establish a respect at work and human rights ombudsperson. It's a good idea for large workplac- es, said Mahil. "Creating the position in and of itself doesn't do anything — it is creating it, advertising it, making people know about it, and telling the employees what rights they have in the workplace and what the policies are and what person is tasked to do, that's the key. "You can't just create an om- budsperson and have them go off and sit in an office by themselves, that won't do any good, nor will it hold up if you go to a labour arbitrator or a court and say, 'Oh well, we had an ombudsperson so therefore we did our due dili- gence.' You need to do more than that." Informal complaints at CBC not treated seriously "You can't hide behind 'Well, I didn't know he was doing this, this and this' when the 'this' you knew ought to have blown your hair back."

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