By Gail L. Gatchalian
On November 22, 2017, I was interviewed by CTV Atlantic about sexual misconduct in the workplace, specifically:
- Could an employee get in trouble if they have alleged sexual harassment or misconduct and they don’t go through the proper channels?
- Does the employee making the complaint need to be careful when naming the accused person? What do they need to be aware of to protect themselves?
- What does the accused person need to know after allegations have been made against them?
- What is your reaction to the allegations made in Hollywood? Will this shift start around here, if it hasn’t already?
Here are my thoughts on these questions, as well as my thoughts about what needs to change in Nova Scotia, and society in general, to support people to come forward with complaints of workplace sexual harassment and assault.
1. Failure to go through proper channels.
An employee has a “duty of loyalty” to their employer. If, for example, an employee went to the media about their allegations of workplace sexual misconduct without going through the internal complaint process first, they could be disciplined or terminated.
If an employee goes outside proper channels, for example, by making public statements, it also makes it much more difficult to resolve the situation, if the situation is capable of resolution.
An employee who makes their allegations public could also be the subject of a defamation action.
As well, any statement a person makes, particularly if it is public (e.g. to the traditional media or through social media) could be used against that person in any legal proceeding to attack their credibility, as we saw in the Jian Ghomeshi trial
If the employee has made an internal complaint and the employer isn’t handling it well, or if the employee does not feel comfortable making an internal complaint, they should get legal advice.
2. Naming the accused; protecting themselves.
If the complainant is following an internal complaint process at their workplace, they have to name the accused person.
If someone is thinking about making a complaint about workplace sexual misconduct, they will have to consider a number of things, including that:
- They have a right to insist that the employer take steps to stop the misconduct and provide them with a safe workplace.
- They have a right to insist that the person investigating their complaint is neutral.
- They have a right to be protected during the investigation; for example, if the complainant works in the same work area as the accused person, and there is a risk of further harassment or retaliation, the accused person may have to be moved or placed on a non-disciplinary paid leave./li>
- They have a right to insist on confidentiality – although the accused person will have to know who made the complaint and the nature of the complaint.
- They have a right to insist that the investigation happen promptly.
- If they have reason not to trust the internal process, or the employer isn’t conducting the investigation properly, they should seek legal advice.
3. What the accused person needs to know.
The accused person has a right to procedural fairness. This means that:
- The person in charge of the investigation has to have an open mind.
- The accused person has a right to know who made the complaint and the nature of the complaint.
- They should be given sufficient time to consider the complaint.
- They should be allowed to have someone with them when they are interviewed as long as that person doesn’t interfere with the investigation.
- They should be given reasonable time to respond to the complaint.
If the accused person has been employed for one year and falls under the Canada Labour Code, or for 10 years and falls under the Nova Scotia Labour Standards Code, they have “just cause” protection, which means that they cannot be discharged without just cause.
The accused person may want to get legal advice. If the accused person did engage in the behaviour, it is usually best to admit it, express genuine remorse, and take action to fix their behaviour at the earliest opportunity. If the behaviour is criminal in nature, the accused person should definitely consult a criminal lawyer because anything they say can be used against them if they are charged.
4. Hollywood allegations, and shifts here in Nova Scotia.
The Hollywood allegations are devastating and overwhelming. As sexual harassment and assault at work is beginning to be discussed more publicly, and complainants are seeking justice in some form, we are getting more calls about sexual misconduct and other misconduct in the workplace. This is a positive shift.
But we need to think about people, particularly women and trans people, who do precarious work and who have a relative lack of privilege. We need to think about how people who are poor, who work in casual and temporary positions, and who experience intersecting forms of oppression, such as on the basis of race, sex, gender identity and expression, sexual orientation, disability, and citizenship status, are extremely vulnerable to sexual harassment because of their lack of power. These workers are likely not going to come forward with a complaint. Unless we take steps to provide people, particularly women and trans people, with good, secure, safe employment, and access to a safe, trusted, competent person or body to bring their complaints to and have them investigated, I’m afraid we won’t see the same kind of disclosure about workplace sexual misconduct as we have seen in Hollywood.
You can see part of my interview with Suzette Belliveau on CTV’s Atlantic’s November 22, 2017 5 p.m. broadcast here.
For more information about an employee’s rights and an employer’s obligations regarding workplace sexual harassment and misconduct, contact Gail Gatchalian.