Algoma HRPA Conference
2015
The Canadian Legal Institute
The “commentary section” can be used to review recent cases of
interest by simple searches
 Example, if you were interested on reading recent commentary
about “family status” you would type “family status” into the
document text, and populate the following results within
seconds.

 Website:
http://www.canlii.org/en/
Workplace Law
Sara Malkin
Mathews Dinsdale
Social Media and Termination
A Discussion of
Algoma Tubes v. United Steelworkers Local 9548,
(Grievance of D.) May 15, 2014.
May 7, 2015
Algoma Human Resources Professionals Association
Paul Cassan
http://www.canlii.org/en/on/onla/doc/2014/
2014canlii26445/2014canlii26445.html
May 7, 2015
Algoma Human Resources Professionals Association
Paul Cassan
Overview

Urban Dictionary

Facts of the Case

Investigation

Discipline

Arbitration

Subsequent Consideration of the Case

Investigation of Facebook Harassment
Paul Cassan
NSFW

Next slide is going to be somewhat sensitive

It was not included in the decision but
important for HR – anyone who will be offended
by a discussion of a sexual nature can step out
now
Paul Cassan
NSFW
The term we will discuss is “Donkey Punch”.
 In the case in question the grievor said, among
other things, that his victim should be “Donkey
Punched”
 When this first came to my attention with my
client, I wasn’t familiar with the term and
imagined a much less offensive concept. This
could have substantially altered the course of this
case.

Paul Cassan
NSFW
 Donkey
Punch–

Urban Dictionary should be a frequent tool for HR –
various terms and slang may carry meanings relevant to
HR issues in the workplace.

This is more and more important as social media becomes
embedded in our daily lives both at work and after work
Paul Cassan
NSFW

Donkey Punch–

A Donkey Punch is a practice performed during doggy style sex,
particularly anal sex. The penetrating partner punches the receiving
partner in the back of the head or in the lower back to make the
receiving partner’s anal passage tense up thus increasing the pleasure
of the penetrating partner. Of course the practice could cause loss of
consciousness, severe injury to the receiving partner or even death.
Paul Cassan
Facts of Algoma Tubes v. D.

Grievor was a male employee who had worked at the mill for just
under 4 years

On the day in question the grievor was operating a crane and his
victim was the stocker (person responsible for loading and signaling
the crane)

One hour into the 8 hour shift the grievor complained to a supervisor
about the work the stocker was doing. Specifically he was concerned
about her “signaling”. The supervisor spoke to her and learned that
her view was the crane operator was not following procedures. They
were instructed to follow procedures and discuss it with the finishing
coordinator the next day. There were no further complaints,
incidents or events recorded during the next 7 hours of the shift.
Paul Cassan
Facts Cont.

After the shift, between 11:00 pm and 1:00 am, the Grievor went home and
published a number of derogatory posts about his victim

He identified her by referring to a physical characteristic that she had which
would make her identity known to anyone who worked with her

A different employee with whom he was “friends” posted suggesting a
physically aggressive act

He published that she should be donkey punched and entered into a
discussion with another employee about this.

The arbitrator said that this was a violent and humiliating sex act.

The facebook conversation lasted about two hours

At the end the grievor mentioned a cruel nickname associated with his
victim’s physical characteristic.
Paul Cassan
Facts Cont.

A friend of the Stocker brought the posts to her attention and the victim
complained to HR at 11:00 the next day

HR logged onto Facebook, saw and preserved the offensive posts

HR was able to take screen shots of the posts for evidentiary purposes

HR looked up the definition of donkey punch

HR then advised the Union representative that they wanted to meet with the
grievor

After the meeting with the Union representative and before the grievor came to
work, the posts were taken down

They were up for more than 12 hours

The Grievor did have a discipline history although it was the Company’s position
that the discipline did not matter in this situation
Paul Cassan
Facts Cont.

The grievor then had a meeting with HR

In the meeting, the grievor apologized

The grievor said he was embarrassed and that he had deleted the posts

He said he would like to apologize to the victim

He said he did not want to lose his job and that it would never happen again

The grievor was then sent home pending an investigation

HR then conducted an investigation and then terminated the grievor’s employment

HR found that the grievor’s actions were contrary to Bill 168, the Collective
Agreement, the Code of Conduct and even to the United Steelworkers anti
harassment policy from their website

The Grievor did have a discipline history although it was the Company’s position
that the discipline was not considered in this situation because this event on its
own was sufficient to warrant termination.
Paul Cassan
Facts Cont.

The Union grieved that the discipline was excessive

At the Step three meeting the grievor provided a letter of apology for the
company to pass on to the victim

HR looked at the Grievor’s discipline record at the Step 3 meeting to see if
there was anything that would compel them to reinstate the grievor. There
was discipline and, given the seriousness of the offence it was decided the
termination would stand.
Paul Cassan
Facts Cont.

The Company had workplace violence and harassment policies in place for
several years

Employees received training on these policies when Bill 168 passed (and new
employees receive this training in their initial orientation)

Training for the grievor was documented and produced at the arbitration

The policies are posted in various places including on the joint health and
safety bulleting boards
Paul Cassan
Facts Cont.

THE GRIEVOR DID NOT TESTIFY

The Company tried to submit a victim impact statement from the victim
but the Union did not consent and insisted that if her evidence was to be
put forward it had to be viva voce and subject to cross examination

Keep in mind the victim is a union member

Arbitrator Trachuk ruled that without consent the Company could not
submit the grievor’s evidence that way

The Company refused to put the victim through a hearing and so the
victim did not testify at the arbitration
Paul Cassan
Facts Cont.

The Union position at arbitration was as follows:

They brought evidence showing that the anti harassment policy in the
grievor’s work area was locked behind glass;

The Union put forward photos of the policies with dates of 2012 and 2013

Neither the workplace violence policy nor the workplace harassment
policy refer to social media nor do they say violation could lead to
dismissal

The Union argued that the Company did not investigate properly and did
not discover the complaint that the grievor made about the victim’s
signaling. The Union said that the company should have separated the
individuals at that time and that the company’s failure to do so caused
the grievor to act uncharacteristically. I said that this was an instance of
the Union blaming the victim.
Paul Cassan
Facts Cont.

The Union position at arbitration cont:

The union pointed out that this was the only complaint of harassment against
the Grievor

It argued that the Company was not in compliance with the OHSA because it
did not have an up to date harassment policy and that it was unfair to
terminate the grievor for an OHSA violation while the company was in
violation of the OHSA

It argued that the harassment policy requires the person being harassed to ask
the harasser to stop

It argued that it was mitigating that the grievor did not mention his victim by
name

It argued termination was unfair because there were no rules publicized about
social media and none of the policies say termination will be the penalty for
harassment
Paul Cassan
Decision

Arbitrator Trachuk found the following:

The most serious aggravating factor was the nature of the comments

A woman reading the posts would reasonably feel threatened

The Grievor must have anticipated the victim would become aware of the posts due to
the number of coworkers that were his friends and no apparent privacy settings

The grievor did not testify about his alleged “frustration” with the grievor’s conduct but
in any case, frustration does not excuse the grievor’s actions (pg 14)

The reference to the victim’s physical characteristic was made to both hurt and identify
her to coworkers

Three years is not a long term employee

The fact that the grievor had not harassed anyone else was not more than a minor
mitigating factor
Paul Cassan
Decision

The company did have OHSA policies in place and had trained the grievor on
them

They should not be locked behind glass

Sexual harassment has not just become unlawful or unacceptable with the
inclusion of Bill 168 in the OHSA. It has been in the Human Rights Code for
many years…It would be highly unreasonable for the grievor [had he testified]
to claim he did not know that publicizing the comments was harassment and
contrary to the company policies

Policies should include social media.

Apologies after being caught appear self serving. If a grievor wants an
arbitrator to believe the sincerity of the apology he should testify
Paul Cassan
Decision

The grievor knew he was sharing his comments with coworkers. He had to
expect the victim would find out. THIS IS NOT OFF DUTY CONDUCT BECAUSE
IT WAS DIRECTED AT POISONING THE VICTIM’S WORK ENVIRONMENT.

Arbitrator Trachuk did not find that the fact the OHSA policies did not refer to
social media or indicate the possibility of discipline was a mitigating factor.

An employee who participated in this facebook discussion was given a 10 day
suspension. Ms. Trachuk found that his conduct was different from the
grievor’s in that this was the grievor’s page and he was responsible for it and
it was the grievor that made the sexually harassing post. She found the
Grievor’s actions were more serious than this employee’s thereby warranting
the increased penalty.
Paul Cassan
Decision

The Union argued the investigation was inadequate because the grievor was
not asked for a written statement. She found that a statement is an
opportunity for an employee to explain what happened but unless the policy
so states, it is not required to be reduced to writing.

She found that the company had the posts which speak for themselves, they
were on the grievor’s facebook page and the Grievor admitted they were his.

She found that the Company did not need to ask the grievor if he was
provoked because “there could be no excuse for saying such awful things”.

With respect to the Union’s claim that progressive discipline should be used,
Arbitrator Trachuk said “…Progressive discipline is not appropriate in every
case. Some offences are so serious that they warrant discharge. An
employee does not necessarily get one free sexual harassment before he loses
his job.
Paul Cassan
Decision

Arbitrator Trachuk said “When men “joke” about the sexual violence they
should inflict on a woman she can reasonably be concerned that they may
actually hurt her…the greivor sexually harassed the victim and created a
poisoned work environment.

The company is responsible under the Human Rights Code, OHSA and the
collective agreement to maintain a workplace free from harassment and in
the circumstances reinstating the grievor would be contrary to that goal…this
is not an appropriate case for progressive discipline.
Paul Cassan
Observations

Every one commits an offence who

Publishes, distributes or circulates any obscene written matter

(8) says For the purposes of this Act, any publication a dominant
characteristic of which is sex and crime, horror, cruelty and violence, shall be
deemed to be obscene


Further it is a Defamatory Libel pursuant to section 298 of the criminal code
when a person publishes without lawful justification or excuse a libel that is
likely to injure the reputation of any person by exposing him (or her) to
hatred, contempt or ridicule, or that is designed to insult the person of or
concerning whom it is published.
Paul Cassan
Observations

United Steelworkers have a program called Women of Steel to promote
women in the workplace and to alert its members to harassment and
workplace violence. This was not a program that the Union witnesses were
familiar with. Look into this type of program with any union you deal with,
speak to the issue and make sure they understand their own material before
an incident like this takes place
Paul Cassan
Provincial Government Initiative

After the Algoma Tubes case and the Ghomeshi scandal
Premiere Wynne has brought forward a provincial initiative to
deal more strongly with sexual harassment in the workplace.
The plan includes resources and a media campaign.

The plan also includes legislation, to be introduced in the fall,
to eliminate a two-year limitation period for civil sexual assault
claims and to strengthen workplace safety legislation. The
Occupational Health and Safety Act would be amended to
include a definition of sexual harassment and would require
employers to investigate and address such incidents.
Paul Cassan
Take Away

Be aware of Social Media behavior

Know or admit what you don’t know, don’t assume and look up
meanings of comments where appropriate

HR needs to be cognizant of current “lingo”.

A single incident of sexual harassment can be the foundation for
a termination

There is a strong obligation on employers to protect their
employees and it will get stronger

The issue of “out of work conduct” is much less of an issue
where the conduct affects the safety and well being of workers
Paul Cassan
Take Away

Sexual Harassment poisons the work environment

This will be seen as a very serious offence by arbitrators,
not a joke

Joking causes fear

Work with your Union with respect to gender diversity and
equality issues – they may already have significant
material and resources in place
Paul Cassan
QUESTIONS?
Paul Cassan
Investigating Anonymous Facebook
Harassment
Paul Cassan
Follow Me

http://ca.linkedin.com/in/paulcassan/

pcassan@wishartlaw.com
Paul Cassan
Learning Leadership & Workplace Culture
Julie Hryniewicz
Team Jacobs – Teamwork and Leadership
TEAMWORK: It’s a buzzword we hear as much in sports
fields as we do in organizations. It’s something we all aspire
to cultivate for enhancing performance, but in order to do so
we must possess the core ingredients. They include:
 (a) the core principles/values of group dynamics aimed at
fostering teamwork and success


(b) the knowledge, skills and abilities (KSAs) required for
teamwork, and
(c) the core elements that contribute to “team
chemistry.”
Team Development
Decades of scientific research have revealed that groups
develop by way of a staged-process:
 (1) coming together to familiarize themselves with one
another ~ called “forming,”
 (2) then figuring out how their roles fit in with “the team”
including battling with one another ~ called “storming”
 (3) establishing and accepting their roles ~ called
“norming,” and
 (4) then working effectively and cohesively as a unit ~
called “performing.” One important element during this
process is the acceptance of five shared values, including

Shared Identity, Purpose, Accountability and
Respect and Leadership





which involves a strong sense-of-belonging to the group ~
maximizing the commitment and effort they will expend for the
team
which involves a collective willingness to achieve a common
goal
which involves accepting one’s role, being accountable to the
group/team and uniquely contributing to the common goal
which involves each teammate honoring and valuing each
member’s unique and important contribution to the team ~
mates that mutually-respect one another (social cohesion) will
expend more effort toward a shared purpose/goal (task
cohesion), and resolve problems/conflict collaboratively
which involves drawing on each members unique combination
of skills/ knowledge/expertise in order to create a broad
"sharing of influence" toward a common goal
Group Competencies
[Knowledge, Skills and Abilities[KSA’s]

Using HR language, what are the knowledge, skills and
abilities (KSAs) required for teamwork? The two core
competencies are

(1) the ability to successfully manage interpersonal
relations with teammates, and

(2) the ability of the team to successfully manage itself.
Interpersonal Competencies

To the first - interpersonal competencies – a team-based
setting calls for team members to be capable of effective
conflict management, collaborative problem-solving and
interpersonal communication.
Conflict Management




On conflict management, team members:
(i) recognize and encourage desirable – and
discouraging undesirable – team conflict,
(ii) recognize the type-and-source of conflict and
implement an appropriate conflict resolution
strategy, and
(iii) employ an integrative (win-win) conflictresolution strategy rather than the traditional (winlose) strategy.
Collaborative Problem Solving

On collaborative problem-solving competencies, team
members take the initiative to solve issues amongst
themselves and they do that by:

(i) identifying situations that require participative group
problem solving and use the proper degree and type of
decision-making and,

(ii) recognize the obstacles to collaborative group
problem-solving and implement appropriate corrective
actions.
On Effective Communication

On collaborative problem-solving competencies, team
members take the initiative to solve issues amongst
themselves and they do that by:

(i) identifying situations that require participative group
problem solving and use the proper degree and type of
decision-making and,

(ii) recognize the obstacles to collaborative group
problem-solving and implement appropriate corrective
actions.
Team

As a team, our members recognize that they have to manage
themselves in order to be successful. This includes:
(i) setting goals and managing their performance, and
(ii) establishing plans and coordinating activities.

On team goals, our goals are:
(a) SMART: specific, measurable, assignable, realistic and time-related, and
(b) measured against the monitoring and evaluation of our performance,
with feedback on individual and team performance.

·
On planning and task coordination, curling – like hockey and
basketball – is a sport of coordinated team-play (unlike baseball which is
more a summation of individual actions). As one’s activity
is “interdependent,” the activity needs to be planned and coordinated
with that of other teammates. Knowing your role and how it impacts your
teammates is key to success.
Team Chemistry

Researchers have suggested that once you secure the individual
“technical competencies” within a group, it’s the memberinteractions (or lack of interaction) that serve as the catalyst
for team chemistry. Teammate interactions depend upon
the “similarities and differences” amongst the teammates.
On similarities, the more shared traits, backgrounds and
experiences – commonalities – the less-likelihood of conflict
and the higher-likelihood of strong interpersonal networks for
resolving conflict. Marginalized teammates – once identified –
can be integrated into networks by finding common ground with
teammates. Of course, too much similarity can compromise the
diversity of ideas, perspectives and approaches necessary for
problem solving. Teammates with many commonalities and
some differences bring a broad range of ideas and perspectives
and develop the strong interpersonal networks to collectively
solve problems.
Lessons

The “lessons on teamwork” from the athletic field to
the field of work are to assemble teams with:
 (a)
shared identity, purpose, accountability, and
leadership - that “team-first” values – are the keys to
team success,
 (b)
team members that have high-levels of interpersonal
and managerial competencies, and
 (c)
technical competence – together with a balance of
similarities and differences – and solid networks of
interaction.