Human Rights and Human Wrongs: Our Continuing Need to Teach

Francine had been disciplined before. She had been suspended for 3 days, for an angry outburst that she had in the shipping department. But this time was worse.

Francine was in the cafeteria, finishing her break. Three co-workers sat down at the same table, and within minutes she began yelling and swearing at them. One of them began talking to her, trying to quiet her down. She threw her cup of tea in his face, and then left the room.

Francine was terminated. The letter of termination cited the company anti-violence and harassment policies.

The most interesting piece of the story arose during mediation, when the grievor told the mediator that she didn’t have a problem with anger – she had a problem with the Filipino employees who were working in the plant. “They are all so tight, always together, and they are taking all the jobs in the plant. None of my nephews, and none of my friends’ kids are getting the new jobs…”

This is not just a problem with anger management. This is a problem with racism. Canadian workplaces are full of it.

Mark was new to the parks department. He was thrilled with his new job, and wanted nothing more than to work outside. He was fond of his co-workers, with whom he enjoyed regular Twitter banter about just about anything that came to mind. He commented on the breast size of the girls in the park, and on his view that the non-white cohort of the workforce worked at a slower pace than he and his buddies.

He laughed when one of his co-workers, a black female, replied to one of his tweets by calling him a major jerk. He laughed when she filed a grievance, asserting that he was poisoning the workplace with his offensive Twitter activity, and demanding that management take steps to prohibit the behaviour.

He didn’t laugh when he was suspended from work, pending investigation of the grievance.

This is not just a case of “boys will be boys.” This is discrimination on the grounds of sex and race. Canadian workplaces are full of it.

Angel had twenty years’ service with the company, and was pleased to see the posting for dispatcher. He applied immediately, confident that after all those years, he was going to see a less physical, more predictable, and slightly more prestigious position. When he learned that his competition for the job was the new kid – the one who limps – he lost it. His rant included comments about the “rookie cripple” and the “lousy gimp.”

Angel not only lost his bid for the dispatcher job; he was disciplined for violation of the company human rights policy.

This is not just a case of conflict between seniority and human rights principles, it is discrimination against those with disabilities. Canadian workplaces are full of it.

Consider the implications

A workplace in which there are human rights issues and conflicts can expect the following problems:

  • Individuals experience pain and genuinely suffer
  • Employees who are victims of discrimination work poorly and eventually get sick
  • Employer reputation is threatened or impaired
  • When workplace poisoning occurs over social media, the image of that workplace is immediately broadcast widely, without geographic boundaries. Global efforts become global embarrassments.
  • There are hostile feelings among employees
  • Groups and cliques of employees form
  • Individuals and groups become marginalized
  • Hostilities flare up from time to time, raising threats of and actual violence
  • Union executive become burdened
  • Time and effort are invested in individual conflicts
  • The relationship between the union and management suffers
  • Money is spent on external resources – investigators, lawyers, mediators, arbitrators

Individual conflicts might be resolved, but systemic discrimination often remains as a fertile ground for the next individual conflict.

We Have the Resources

Human rights legislation is not new to Canadian workplaces in any jurisdiction. We have a rich history of meaningful anti-discrimination legislation. We have huge bodies of jurisprudence breathing vigour into the statutes. Our collective agreements have come to recognize, respect and embrace human rights principles. We have proactive human rights commissions that provide accessible and practical resources to individuals, unions and employers. We have human rights and anti-discrimination policies by the truckload in every workplace in the land. There is no shortage of educational programming, of policy reviewing, of posters in lunchrooms.

But the Problem Remains

Yet there remains, I respectfully argue, a continuing cloud of discrimination in Canadian workplaces. Discrimination continues to poison the lives of individual employees, burden our unions, bog down our management teams, and over-employ our lawyers, mediators and arbitrators.

It continually surprises me, in the course of practising mediation and arbitration, how frequently these issues arise in our workplaces. How pervasive the problem is.

Part of the difficulty, of course, is that although some of us have invested our entire professional lives learning, teaching and fighting human rights issues, every time a workplace welcomes a new employee, that workplace opens its doors to a new influence. That new influence is not likely to have had the benefit of all of that learning, any of that teaching, or any of that fighting.

The challenge of fighting discrimination arises anew every time we hire a new employee.

The task of teaching what human rights are, what discrimination is, and what is and is not permitted in the workplace is a critical task that must be brought alive with every new hire. It is a task that requires vigilant attention. It is a task that is worth repeating and refreshing.

It is Our Responsibility to Teach

With few exceptions, high schools do not teach fundamental human rights concepts. With few exceptions, and unless students pursue specific training, undergraduate university curricula do not include the teaching of fundamental human rights concepts. With few exceptions, career programs and professional schools such as nursing and teaching, do not teach fundamental human rights concepts.

The ultimate responsibility to teach human rights concepts, to explain what discrimination is and why it is prohibited by law, falls upon the employer and the union.

At the risk of repeating a point – when the employer takes on a new hire, when the union welcomes a new member, the likelihood is that although this person has heard of a “human rights code”, they have absolutely no familiarity with it. They are not familiar with its principles. More importantly, they are not familiar with what behaviour is and is not allowed in the workplace. Even with those who have some fundamental training in human rights concepts, there is often a “disconnect” between their appreciation of the concept, and their ability to see what behaviours are and are not discriminatory.

I will go so far as to say that with some frequency, even those have been engaged in management roles or union responsibilities require fundamental education in human rights concepts and practical application of those concepts. In teaching human rights principles at Queen’s IRC, we are constantly impressed with the light bulbs appearing over the heads of those who have been familiar with human rights lingo for years, but have never quite appreciated how the words apply.

In the classroom, seasoned managers are still seen rolling their eyes over the challenge and cost of, for example, accommodating the employee disabled by alcoholism, addressing the needs of a parent whose disabled kid contributes to attendance issues, or coping with the conflicts caused by the gender-shift surgery. Our instructors remind them that human rights protections reflect the deeply held values of Canadian society, delivered as a result of democratic legislative process.

Human rights codes are not stable or one-off enactments. They change from time to time, as the norms and values of the community shift. Forty years ago we did not consider gender a characteristic worthy of workplace respect. Thirty years ago we did not consider alcoholism or drug addiction to be a disability. Twenty years ago we did not consider sexual orientation worthy of protection, family status an issue of workplace concern, or transgendered identity a choice worthy of dignity. As the norms and values of our culture shift, so do our human rights codes and their requirements.

Human rights codes, at their core, reflect the reasons that most of our ancestors came to Canada. They continue to be part of the reason that those from less peaceful parts of the world still make that journey.

So What is the Answer?

It is critical that employers and unions continue to embrace their responsibilities to learn and teach fundamental human rights concepts. It is critical that we continue to teach managers and supervisors what the principles are and how they apply to day to day behaviours. It is critical that each new hire receives a meaningful education about what discrimination means and how the rules apply in their workplace.

No, it is not sufficient to hand a new hire a copy of the human rights policy, and ask them to initial it. That is not teaching – that is mere administration.

No, it is not enough to call employees or members together once every few years to hear someone talk about human rights ideals. That is not teaching either.

No, it is not enough to post the results of the latest arbitration award or court decision that affected your workplace, and have employees learn from the mistakes of others. That may be teaching, but it is very expensive teaching.

How to Teach?

Adults learn from reading, listening, discussing, and then practicing. We have to have an opportunity to absorb the information, and then to apply it. We need the lessons, but then we need to learn how to implement them. We have to practice the lessons. We need to translate the human rights lingo into every day words and actions.

Classrooms, seminars, workshops, on-site sessions, and role play opportunities are essential pieces of in-house training systems for all employees. Adult students must be required to feed the information back to the instructor, in order to break the learning barrier. Human rights training in any environment must be interactive. Examples of behaviours that are and are not appropriate must be provided – again and again.

Managers, supervisors and union executive require clear opportunities to learn what is and is not permissible behaviour. Although front line workers require a degree of human rights training, a workplace culture will not be affected and improved unless managers, supervisors and union executive have a firm grip on the concepts, and are ready to model behaviour appropriately.

We have to teach employees, managers and supervisors appropriate intervention and behavioural correction when others commit acts of discrimination.  Counselling must accompany progressive discipline in this area. (Discipline alone is a poor teacher, as perpetrators become defensive and denying.) This is a tough area to teach in-house. It should include some awareness of “difficult conversations” and skillful feedback.

Just as workplaces assess the risk of workplace violence by surveying their employees, the practice of repeated surveying for discriminatory behaviours and workplace poisoning is advised. Regular scrutiny will track shifting sensibilities, enabling policies and practices to shift as well.

Finally, an acute awareness of human rights in the workplace will translate into a practice of never missing an opportunity. Any time employees gather in one place is a good time to remind them that this workplace, and this union, reflect certain values, and that their behaviour, day in and day out, is a reflection of those values.

There is no downside to getting passionate about human rights in your workplace. It is individuals who affect change, and the small steps that influence the larger shifts.  Train and empower one person to be the advocate for the human rights high ground. It is a valuable investment, and one that will return human rewards.

About the Author

Elaine Newman, Arbitrator and Mediator, Queen's IRC Facilitator

Elaine Newman, Ba, LL.B., LL.M., was called to the bar in Ontario in 1979. Elaine is a very experienced full-time arbitrator and mediator, specializing in labour relations, employment, and human rights matters. She is a teacher, an author, and frequent speaker on labour, employment and human rights issues. Elaine served as Associate Director of the LLM program in Labour Relations and Employment Law at Osgoode Hall Law School 2002 to 2008. She was lead instructor for the Advanced Dispute Resolution Course at Atkinson Faculty, York University for ten years, where she taught the Ethics of Mediation course, and the Advanced Practicum course. She is a frequent guest speaker at Queen’s IRC programs, and is lead instructor of the Strategic Grievance Handling program. Elaine is the author of the online course, “Practical Ethics for Working Mediators”, offered by the ADR Institute of Ontario.  Her textbook, Preventing Violence in the Workplace, is published by Lancaster House, Toronto.

Handling Labour Relations Disasters

A female employee was involved in a romantic relationship with a male member of the team. He was married. She had enough. The romance ended. He was unable to accept the end of the relationship. He called her repeatedly, at home and at work. He openly harassed her. He distributed photos of her. The woman, her co-workers, and supervisors all saw what was happening, but no one quite knew how to help. Some didn’t know if it was their business to intervene. Some thought this was a “private matter.” Eventually, the mentally unstable man came to the workplace. He stabbed the woman, causing her death. He then left the workplace, and killed himself.

This is a true story.

Consider the tragic human elements involved; the impact for the families of both people involved. Consider the implications for the human resource professionals, for the union, and for every individual working in this organization:

  • There is widespread shock among employees, some of whom witnessed the episode
  • There is guilt among supervisory staff, who were aware of the harassment
  • There is a sense of danger that permeates the workplace, and has impact on morale
  • Numerous grievances are filed, asserting failure to provide a safe workplace
  • Numerous complaints of harassment are lodged
  • Absenteeism rises dramatically
  • Performance is affected, but supervisors are reluctant to counsel or impose discipline
  • Gossip is rampant
  • There appears to be no exit strategy from the disaster.

Not all workplaces, thankfully, experience harassment that leads to such an extreme result. But this episode has been taken, in the province of Ontario, and across the country, as a lesson in how to heed the warning signs of workplace violence. The warning signs are critical because criminologists tell us that most violent acts are precipitated by warnings—sometimes clear cries for help.

We have all learned the importance of addressing harassment complaints in a vigorous and thoughtful manner, knowing that our activities in this field have potential to save a life, to protect our employees from hurt and from fear, and to save our organizations the institutional pain of workplace disaster.

We have learned how to approach grievance handling, for example, from a “strategic” perspective—one that addresses the causes of grievance backlog, the root of piled-up grievances that deal with the same area of discontent, and lead to a clear path from the catastrophic potential of workplace conflict to a safer environment with more effective practices for identifying and preventing an escalation of hostility. Let’s consider the lessons that have been taken from the factual situation described above.

Best Practices in Dealing with Harassment Complaints

With statutory changes across the country, issues of workplace violence and harassment have become occupational health and safety issues. It becomes mandatory for employers, employees, supervisors, and unions to address complaints of harassment with a deliberate and serious approach.

Harassment complaints are serious. They should be addressed quickly—even if the usual pace for addressing complaints or grievances would provide for longer timelines.

Employees have to feel that making a complaint is easy. In some workplaces, written complaints are appropriate, but in others, it may be that employees will be more comfortable meeting privately with the appropriate individual to orally report their experiences.

Employees who have harassment complaints should be given the opportunity to tell their story—fully and in their own way. The listener is advised to listen actively, without judging the story. Listen first and investigate later.

Complaints should be received and heard by the appropriate person in the appropriate position. These are serious complaints, and the organization’s practices should reflect that fact. If the employee needs to complain about the person who would otherwise hear their complaint, such as their own supervisor, then an easily accessible alternate route should be available, and should be made known.

Employees should understand that if their complaint is to be taken seriously, it must be investigated, and cannot be kept confidential. The alleged harasser has rights. He or she is entitled to know what the complaint is, who made it, and what the particulars of the complaint are.

It is often appropriate to take immediate steps to separate the individuals involved, until investigation can take place. Sometimes, the facts warrant suspension of one person pending investigation.

If the complaint involves an allegation of a criminal act, such as threatening, assault or sexual assault, police should be called.

Numerous Related Grievances

It is common, when several grievances are filed addressing the same area of concern, for the union to file a policy grievance that will enable systemic consideration of the identified problem. If the organization becomes aware of numerous complaints that raise issues of harassment, the situation may be considered serious. Each of these complaints presents its own significant human drama, with potential to affect the lives of each person involved. Each involves issues of fear, insult, trust, uncertainty, vulnerability, and ultimately, aggressive adversarial conflict. When harassment grievances are significant in number, the strain on the organization (not to mention the strain on human resources professionals and union executive) can prove costly and disruptive.

In a workplace that does not take a “strategic” approach to grievance management, both union and management officials may be inundated with a high volume of time-consuming grievance work. Morale will be impaired. Conflict among co-workers may escalate. There may be a toxic individual, or a combustible relationship on the making. This is not healthy.

Best practices include meeting with union officials immediately and listening carefully to the complaint. Given the potential that an early harassment complaint may be a cry for help, or a warning of potential physical violence, consider interim preventative measures, such as the separation of individuals that were referred to earlier, while investigation takes place. Particularly in cases of multiple harassment complaints naming the same alleged wrongdoer, strategic management may include stepping away from the usual grievance procedure, and quickly moving to explore the issues and allegations. This is a situation in which it makes good sense to err on the side of greater caution.

Cases of Union Conflict

Harassment complaints often involve co-workers. Both the complainant and alleged wrongdoer may be members of the same bargaining unit. The union finds itself in a tough position, because it has an obligation to represent both individuals.

In cases where more than one complaint is made against the same individual, it is likely that there is a high degree of animosity among bargaining unit members, many of whom would prefer a safe workplace without the alleged harasser present. The union and local executive will be under considerable pressure.

The union’s conflict will have to be carefully considered, and a solution found. Generally speaking, it makes good sense for the union to represent one of the individuals, or the group with the same interest, and assume the responsibility of securing and paying for independent legal counsel for the other.

Making the Most of Grievance Meetings

Grievance procedures are often overlooked as useful and potentially effective dispute resolution mechanisms. This is a costly error in strategic grievance management, whether one is working from the union or management perspective.

Grievance meetings are required to take place early in the grievance procedure. With the appropriate people in the room, focussing on the problem, armed with the facts that are available at this stage, a thoughtfully conducted grievance meeting can provide excellent opportunity to manage a potentially violent situation.

Strategic management of grievance meetings requires consideration of who should attend. To the greatest extent possible, facts should be gathered in preparation for that discussion. In cases of serious harassment allegations, or multiple harassment allegations, consider sharing data in a fulsome way at this early stage. Share early investigation results. Prepare the grievance committee or management team to listen carefully, to convey uniform information, and to be consistent in the goal of the meeting. Particularly in addressing a serious harassment complaint, the grievance meeting is no place for inter-team conflict or individual political agendas.

Controlling the Grievance Process

If the matter does not resolve at the grievance meeting, consider the next important steps in handling the harassment grievance. There is a critical decision to be made about proceeding to arbitration or mediation. Consider which process is right for this case. What are the pros and cons of each process? Do you need a legal precedent in the case? Do you need an award that is public, rather than a settlement that may be confidential? Can the grievor withstand the arbitration process? Should he or she be exposed to cross-examination, and the formalities and stresses of arbitration?

Consider whether arbitration or mediation will be the most desirable process for the labour relations between the parties. The harassment grievance puts a strain on everyone in the workplace, but the relationship is a long one, and will continue after this dispute is resolved. Which process will, in the circumstances, best serve the long term goals?

The strategic practitioner is in control of every aspect of the grievance process. He or she is a professional who knows where the case is going, how it will look when it gets there, and why it is at this stage. The strategic practitioner is not always ready to face workplace disaster. None of us are. But when it strikes, the strategic practitioner will be position to go to the rule book, to evaluate the options, and to fearlessly control the process as it matures. The strategic practitioner is one who brings this expertise to the job, and with it, their passion and commitment to the role of problem solver.

About the Author

Elaine Newman - Handling Labour Relations Disasters

Elaine Newman, Ba, LL.B., LL.M., called to the bar in Ontario in 1979. Elaine is a very experienced full-time arbitrator and mediator, specializing in labour relations, employment, and human rights matters. She is a teacher, an author, and frequent speaker on labour, employment and human rights issues. Elaine served as Associate Director of the LLM program in Labour Relations and Employment Law at Osgoode Hall Law School 2002 to 2008. She was lead instructor for the Advanced Dispute Resolution Course at Atkinson Faculty, York University for ten years, where she taught the Ethics of Mediation course, and the Advanced Practicum course. She is a frequent guest speaker at the Queen’s University Industrial Relations Centre (IRC), and is lead instructor of the IRC’s Strategic Grievance Handling program. Elaine is the author of the online course, “Practical Ethics for Working Mediators”, offered by the ADR Institute of Ontario.  Her textbook, Preventing Violence in the Workplace, is published by Lancaster House, Toronto.

Introducing the Strategic Grievance Handling program

I can’t tell you the number of times I have found myself in the midst of a labour arbitration hearing, asking myself, “Why are we doing this?” “Why are we having this hearing?” “What goal do the parties hope to achieve by investing in these expensive days in hearing?” Often, I am sure that the parties themselves do not have an answer to these questions squarely in mind. The results of the Queen’s IRC research (Juniper & Hill, 2011) prove me right. It appears that human resource practitioners have identified a strong need to develop analytical, critical, and strategic thinking – the kinds of skills necessary to ensure that their grievance handling becomes more effective and “strategic”.

When we use the term “strategic” in this field, we are not alluding to the sort of strategy Tony Soprano would use to either foster obedience among his followers, or strike at the heart of the enemy. We are not talking about strategizing for victory in an adversarial process. If that is all a party wants to achieve, they merely have to hire the best lawyer they can find, and outsource the battle. We are talking about a different sort of strategy for the handling of grievances – the kind that nurtures, for both the union and the management representative, the sort of informed, deliberate action in addressing conflict that will serve the party’s long term goals.

We want human resource practitioners, whether union or management side in orientation, to stop merely “handling” grievances – opening one file after another, taking the next step, booking a date, taking the meeting, and so on. We want human resource practitioners to approach each conflict, from the moment it comes to their attention, to the point at which it is resolved, with thoughtful and skilled deliberate action.

No letter should be written unless it fits the strategy. No meeting should be taken unless the file has been prepared. No mediation or arbitration should be conducted unless it fits into a deliberate and meaningful long term plan.

This is the philosophy behind the development of the IRC’s new Strategic Grievance Handling program.

It will be a tough four-day program, overflowing with information and learning. One learns best by doing, and we will be working! Role plays, exercises, creating our own checklists for desk-side use, observing processes, participating in processes, critiquing each other, learning from the experts, and learning from each other. Plan on working hard and learning hard, while you master the techniques required to be strategic in your work.

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