Latest Leak
Released on September 01, 2013, 2:00 AM EDT
Tag #: 660
Tragedy: Trouble in the tap further deepens



City's water and wastewater divisional director, Benkovich is facing allegations of sexual harassment
Ontario Human Rights Tribunal reopened the file


Benkovich: Controversial practices, Fowke:  Incompetent and negligence (from left)

The decision was issued by Vice Chair, Dawn J. Kershaw, Adjudicator of the Ontario Human Rights Tribunal on August 07, 2013 (Citation: 2013 HRTO 1359). WikiLeaks Sudbury will not disclose any identifiable information regarding the victim.

WikiLeaks Sudbury’s investigative team also uncovered a series of e-mails communicating with Kevin Fowke, director of human resources, regarding this sexual harassment case. One of the respondents wrote to the director on March 27, 2012. This e-mail was registered in the server at 10:50 AM with the subject: “Restraining Order”.  The e-mail read: “There you have it. Her needs trump ours.”

These e-mail interactions provide clear evidence that there was a hidden agenda between Benkovich and Fowke. Fowke was unable to manage human resources issues and instead provided unconditional support to managers and supervisors in the water and wastewater division to continue harassment against employees.

The administrative immunity provided to water and wastewater divisional supervisors and managers can be identified as being the principal cause for the deteriorating of rights situation in the water and wastewater division. Fowke did not hesitate to provide legal support for its divisional mangers at the cost of tax payers. WikiLeaks Sudbury also uncovered that over $ 89,000.00 tax dollars were spent for the human rights legal proceedings.  

Workplace harassment complaints were vastly neglected and not properly addressed. Fowke continually advised employees to utilize their internal “Judge Jury” complaint procedure and deliberately attempted to sweep all issues under the rug. Vicki Baronette, human resources coordinator of water and waste water division, is a key employee utilized by Fowke to cover-up issues in the division. It seems Baronette’s primary task is to cover-up the misconduct of divisional managers and supervisors.

The divisional director, Benkovich faced over 340 grievances and 6 human rights complaints. There have been allegations that Benkovich has also engaged in sexual misconduct in the workplace.  

The Ontario Human Rights Tribunal will schedule hearing and information will be available to public.

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Editorial
Released on September 01, 2013 at 02:00 AM EDT

The original article initially published on Canadian Journal of Administrative Sciences, 29 (3), 268-279. Excerpts from the article as follows.

Labour Arbitration: Sexual Harassment Cases in Canada

Women have the right to a workplace free from sexual harassment under Canadian provincial and federal human rights legislation. Canadian labour laws incorporate the right to a grievance procedure including binding arbitration where arbitrators must interpret and apply human rights legislation. This research analyzes co-worker and supervisor sexual harassment cases in order to assess how well arbitrations protect the right of unionized women to a harassment free workplace. Results indicate that women complainants were often subjected to aggressive gendered cross examinations and the application of gendered jurisprudence that largely ignored the impact of gendered power relations in the workplace. The conclusion is that women's experiences in arbitrations are likely a deterrent to filing formal complaints, effectively undermining rather than protecting their rights.

Labour arbitrations are dispute resolution mechanisms in grievance procedures available in unionized workplaces and ensure workers' rights are exercised. Relevant employment law, including human rights codes, must be incorporated into the arbitral process. Employers have a statutory duty to provide a safe and healthy workplace free from harassment (Robichaud v. Canada, 1987). This research fills a gap in the literature by assessing how well co-worker and supervisor sexual harassment arbitrations protect the rights of women to a harassment free workplace. The combination of feminist and industrial relations literature provides an innovative analytical framework for the study.

The Canadian Human Rights Commission defines harassment as “any behaviour that demeans, humiliates or embarrasses a person, […which] a reasonable person should have known would be unwelcome”. According to the Supreme Court of Canada, workplace sexual harassment is the “unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse, job related consequences for the victim of harassment” (Janzen v. Platy Enterprises Ltd.). Despite human rights legislation prohibiting sexual harassment as a form of discrimination and a substantial body of case law, evidence shows that it continues to occur in Canada  and in many other countries. Although complaints from men are increasing, women are the most frequent targets. And while women are sexually harassed in both female- and male-dominated workplaces, such occurrences are more frequent in traditionally male work environments such as construction, the trades, and the uniformed services.

Theoretical Explanations of Workplace Sexual Harassment

Theories of sexual harassment can be broadly categorized according to their primary level of explanation: the individual the organization   or society targets is important, as is attention to organizational factors such as policies, training, channels for redress, management, and union commitment. While acknowledging the complexity of sexual harassment and its; this section is a brief framing for the discussion that follows, with a focus on feminist-informed societal level explanations. Feminist theorists are primarily interested in women as targets of harassment, and as is the case in this work, they explain sexual harassment in terms of the protection of male dominance, masculinity, and power:

The harassment [in traditionally male workplaces] appears designed to preserve the male employees' masculinity, which is threatened by the ability of women to perform the work, and to put women back into their “rightful” place.… Sexual coercion more often affects women in traditionally female occupations.… the woman in the traditional gender role is treated as a sex object, precisely because she is in her traditional gender role.… Both types of harassment involve the exercise of power, but in different ways and for different purposes.  

According to this view of a sex-based hierarchy, men will, in general, have power over women regardless of social or organizational status. It follows, then, that co-worker and supervisor  sexual harassment can be usefully understood as the exercise of informal power in what is most often a formally equal power relationship “arising from the male sexual prerogative, which implies that men have an unfettered right to initiate sexual interactions or assert the primacy of a woman's gender role over her work role”  

Researchers envisaged an organizational hierarchy as “a structure of gendered power” which is complex and hidden, since “the very rules used to determine if behaviour is being seen as harassment are ideologically produced and in themselves an exercise of power”. Further researchers illustrated in part how these rules work in practice through male networking, including the rallying around of an accused harasser and the denial that sexual harassment has occurred. Bearing in mind these gendered dynamics,  many researchers advocated a sexual harassment policy that takes account of “gender inequality as the underlying cause of sexual harassment”   observing that its implementation becomes a political process in which gender and workers' interests are negotiated… [and] the implementation of sexual harassment laws is shaped not only by the laws themselves, but also by systems of industrial relations and institutionalized gender politics.

Given a general social unionism in Canada and the threat co-worker sexual harassment poses to internal solidarity, it is understandable that more unions are developing policies and procedures to address it specifically (e.g., USW Canada).  Others are updating their policies on workplace sexual harassment and violence (e.g., CUPE). Interestingly, one US women's advocacy group noted that many unions worldwide have made significant progress in developing policies to combat sexual harassment (Stop Violence Against Women). Even so, it was difficult to tell from the awards studied how many unions provided separate legal representation for complainants as required in some union policies (CUPE, National Director of Equal Opportunities, Personal Communication; USW Canada). In a very few cases arbitrators noted its occurrence but only one award noted an active second counsel. Contrary to the usual alignment of the parties, often it was the employers who were protecting women's workplace rights. In many of the cases, there was an apparent contradiction between progressive policies increasingly espoused by the labour movement and union practice.

The findings of this research indicated that legal counsel, increasingly hired by the parties in arbitrations felt professionally obliged to win the union case at any cost in what has become a highly adversarial, legalistic context despite the original model that promised an informal, quicker, and quasi-judicial resolution process. Researchers pointed out that the neo-liberal shift from social to individual responsibility and an associated emphasis on the rights of the accused since the Bill of Rights   has led to enhanced defence powers, very aggressive cross-examinations to pressure sexual assault complainants to drop charges, and a parallel danger of slipping more easily into victim blaming. It may well be that this shift and its consequences have filtered through to arbitrations.

In several cases, the humiliating and degrading process of being cross-examined in response to strongly gendered arguments in order to assess the credibility of women versus their harassers led to the re-victimization of women. Canadian law provides unionized workers the right to challenge discipline through a grievance procedure with arbitral resolution if necessary, and in some cases, dismissal is clearly not appropriate. However, unions and their counsel should be more aware of the potential for re-victimization of a female complainant in arbitrations, the ethical implications of their arguments and legal tactics, and their impact on the rights of all women at work. Some unions in this study did manage to defend the griever based on due process, without resorting to gendered arguments. Also, evidence of gendered arbitral reasoning in some cases points to a need for ensuring that arbitrators' training includes comprehension of the underlying causes and impact of co-worker sexual harassment, and of the potential for traditional arbitral jurisprudence to underestimate its seriousness.

In a 2008 sexual assault case, the Supreme Court of Canada stated that there could be no standard of proof higher than the balance of probabilities in all civil cases (F.H. v. McDougal, [2008] 3 S.C.R. 41, 2008 SCC 53). In other words, arbitrators could no longer apply arbitral jurisprudence requiring a stronger balance of probabilities that sexual harassment had occurred due to the seriousness of the allegations, as indicated by some arbitral jurisprudence until that time. In theory, this change should have a beneficial effect on arbitral assessment of women's credibility under cross-examination in a co-worker harassment case. It remains to be seen if this will happen in practice.

Editor
WikiLeaks Sudbury
September 01, 2013

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