Thursday, 11 December 2014

Alberta Human Rights Tribunal Finds School Liable for Harassment of Teacher by Student

While it is obvious that an employer can be held responsible for harassment perpetrated by one employee against another, the law is not well settled on the extent to which liability will attach for the actions of third parties, such as contractors, customers or people who receive services from the organization.  There is precedent for an employer being held responsible for such conduct under the terms of a collective agreement and the Human Rights Code (see for example, Clarendon Foundation v. Ontario Public Service Employees  Union, Local 593 (Mitchell Grievance), (2000), 91 L.A.C. (4th) 105 (Sarra), but few decisions have gone this way.

Employer Liable for Third-Party Harassment

In a recent decision of the Human Rights Tribunals of Alberta, however, has gone further than most.  In Malko-Monterrosa v. Conseil Scolaire Centre-Nord, the complainant was a teacher who was subjected to unwanted, harassing behaviour by a student ("S") over the course of almost two years.  It started with prank phone calls to her home.  The teacher advised the student to stop calling her, and also advised the student's parent (on more than one occasion) about the behaviour and the need for it to stop.  The complainant also brought it to the attention of the school's principal and vice-principal, but they were of the view that the teacher had addressed the situation and only offered to make counselling services available to the student (whose parent advised that she had psychological issues).  Several months later, the teacher again began receiving prank phone calls.  On one occasion, she confronted the caller, who identified herself as a friend of the student, who had provided the teacher's phone number.  The vice-principal of the school spoke to all of the students involved, including S, and they all received suspensions.  The vice-principal also recommended that the teacher change her home telephone number.

The following school year, and over a period of several months, the teacher began receiving harassing and vaguely threatening messages from the student via Facebook and through her work email account.  School administration had discussions with the student and her parent, and kept up regular contact with the teacher to monitor how she was doing.  In January 2009, the teacher received several such messages, and attempted to block the sender by changing her privacy settings and by seeking assistance from Facebook.  After being asked twice, the school's administration had IT block emails to her work email from the sender (who was later conclusively identified as S).  Once it was clear that a number of the offensive messages were coming from an IP address associated with the student, the school administration met to discuss a strategy to protect the teacher.  When S admitted to being the sender of the email messages, she was given a 5-day suspension and a recommendation was made to the school board that S be expelled from the school.  She was also subject to conditions intended to keep her from contacting the complainant directly or indirectly (for example, through the complainant's mother, who was a receptionist at the school S was sent to attend).

Following the student's expulsion, however, the teacher received two more Facebook messages from the student, as well as an offensive, vulgar letter slipped under her classroom door by some other students who were friends with S.  The board was also advised that S had swore at the complainant's mother.  Rather than expelling the student from the second school, however, the board demanded that she provide an apology to the complainant's mother and only issued a 3-day suspension for her breaches of the conditions of her expulsion. Shortly thereafter, the school board learned that S had sent email to two other students alleging that the teacher had sexually assaulted her.  The school contacted police, who investigated and immediately dismissed the allegations as being retaliation.  Despite the teacher's attempts to have the school issue a cease and desist letter to the student, no immediate action was taken and the teacher had to seek a peace bond on her own.  Ultimately, the student transferred out of the school system at the end of the school year.

While there was no question that the school board and its administrators had taken some action to address the harassing behaviour that was directed at the complainant, the Tribunal found that those actions were not effective in creating a workplace free of harassment.  The employer had the authority to sanction S and thereby protect the teacher, but its efforts were "piecemeal", dealing with discrete incidents, and not "coordinated or centralized" in any way to reflect the pattern of escalating harassment.  Too many different administrators were involved, leading to corrective action that was not progressive or meaningful.  When the student had clearly breached the conditions of her expulsion from the school, and should have been facing removal from the school system, the board instead imposed only a suspension.  The Tribunal also observed that it appeared the school board put its concern for the student (who appeared to be emotionally and psychologically "fragile") ahead of its concern for the teacher's safety and well-being.  In the result, the school board (as the employer) was found liable for its failure to address the racial and sexual harassment of the teacher.

What does it mean?

The decision in the Malko-Monterrosa case provides some valuable insights for employers.  When addressing issues of this nature, it's important to assign responsibility for managing the situation to only one or two people within the organization.  This will ensure that responses are coordinated and show an appreciation for the overall pattern of conduct, rather than just the most recent incident.  Complaints about the behaviour of third-parties should be conducted with sensitivity, but with a sense of urgency, and resolution should be offered in a timely manner.  Failure to take the complaint seriously or taking the position that the organization's "hands are tied" will only exacerbate a tense situation.  If the organization doesn't have the 'in-house' resources to investigate or remedy the concern (for example, where forensic IT assistance may be required), look outside the organization to locate the required expertise. 

Ensure that the organization carefully weighs any competing obligations.  Service providers, contractors and other third parties should be made aware from the outset of their duty to treat employees in a respectful way, and that harassment or discrimination will not be tolerated.  Where the employer services a clientele that may be prone to lashing out at staff, ensure that staff know that the employer will take all reasonable measures to protect them from discrimination and harassment.  This may sometimes require the employer to distance itself from the third-party or take serious steps to sanction the behaviour in order to address the employee's concerns.

Do you have concerns with third-party behaviour in the workplace?  Need assistance in investigating or resolving harassment issues?  Contact Lance Ceaser for expert assistance.



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