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Queen's University
 

Racky

What happens when a sexual harassment investigator does not act in accordance with the rules of natural justice ?

Facts

During her first nine months at the Gateway Postal Facility in 1990,  Michele Racky was involved in two internal investigations which left her depressed and suicidal.  The first investigation found, correctly, that the employee had been sexually harassed by a male co-worker. The second found, incorrectly, that she had not been sexually harassed by a male supervisor.  A doctor provided medical documentation about her mental state, and requested that Racky be removed from the environment where the sexual harassment had occurred. The employer, the Canada Post Corporation, rejected this request, because according to its second investigation the sexual harassment had not occurred. At the Grievance hearing, an arbitrator found that the second investigation was fundamentally flawed.  Racky had been sexually harassed (and not only by one supervisor).  In rejecting the doctor's request,  the employer had failed not only to alleviate the adverse consequences of sexual harassment but also to accommodate an employee with a mental disability. The Corporation was ordered to find an alternate place for Racky to work, and to compensate her for lost wages. (Canada Post Corporation and Canadian Union of Postal Workers re Grievance of Michele Racky, December 30, 2003, Pamela Piche, arbitrator).

Legal Questions

  1. Did the investigator act in accordance with rules of natural justice?
  2. Did the evidence show that Racky had been sexually harassed?
  3. Should the employer have accommodated Racky ?

Arbitrator's Ruling

  1. No
  2. Yes
  3. Yes

Arbitrator's Reasoning

  1. The investigator failed to act in accordance with the rules of natural justice when she failed to do the following things in a fair, balanced, unbiased or otherwise appropriate way: 1) consider the complainants allegations; 2) take statements from the two parties; 3)  consider the two parties' requests for witnesses; 4) assess witness testimony; 5) provide the complainant with an opportunity to respond to adverse comments made by witnesses; 6) evaluate contradictions; 7) evaluate the evidence about the nature of the relationship; 8) consider facts positive to the complainant; 9) keep the complainant or the union advised of the progress or the outcome of the investigation.
  2. Three sets of supervisory personnel were guilty of sexual harassment.  Racky's direct supervisor pressured her into dating a male attendance supervisor; the latter pursued her relentlessly despite her constant refusals to date him;  and a number of other managers chided her after she broke off all contact with him.
  3. Medical documentation stated that Racky needed accommodation for mental disability.  The employer should have accommodated her to the point of undue hardship, even if it did not agree with the cause of the disability.

Kingston, Ontario, Canada. K7L 3N6. 613.533.2000