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Harassment at work | I fear you, I spy on you

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Psychological and sexual harassment has not disappeared with the appearance of COVID-19 and the generalization of telework, far from it. The number of complaints, in fact, is on the rise, and the experts conducting the investigations are receiving an unprecedented volume of digital evidence.

Firms specializing in investigations for psychological and sexual harassment have not been idle for three years. New trends have changed their work: a cell phone always at hand, growing agility with technology and mental health weakened by the pandemic.

“In the last complaint I received, there are 80 hours of recording,” says certified investigator and accredited mediator Marie-Josée Douville, president and partner at Drolet Douville, in Quebec City, over the phone.

PHOTO MARTIN TREMBLAY, THE PRESS

Firms specializing in investigations into psychological and sexual harassment at work, such as Relais Expert-Conseil (photo), have received a growing number of complaints over the past two years.

To process this complaint, the investigator is preparing to listen to the equivalent of the last two years of District 31, not to mention all the other documents that are added and that she will have to analyze.

“It is concerning to see the extent and nature of the evidence submitted to support the claims made, she continues. I am thinking, for example, of the number of hours of Teams or Zoom meetings recorded, the multitude of emails sent, the various screenshots, chats [online conversations], text messages. People deposit their daily life in the complaint. »

At Relais Expert-Conseil in Montreal, Luc Chabot, President and CEO, makes the same observation.

PHOTO MARTIN TREMBLAY, THE PRESS

Luc Chabot, President and CEO of Relais Expert-Conseil

Each folder comes with a ton of documentation. People know what their recourses are and when they start to see anomalies, they document them. Everyone is made skilled with technology.

Luc Chabot, President and CEO of Relais Expert-Conseil

His team of investigators is now receiving records from workplaces that were not used to providing this type of document. Whether in very small businesses or large organizations, shops, colleges, mines, factories, no workplace is immune. The president of Relais Expert-Conseil says he handles 300 to 400 complaints a year.

Remote harassment

It is not because we are out of sight that we are automatically far from psychological or sexual harassment. Abuse of power, intimidation, manifestation of unreciprocated insistent desires, humiliation, rude remarks, all these behaviors are transposed better than ever in virtual.

The type of evidence filed is closely linked to telework, observes certified harassment investigator Élise Corriveau, president of the Dialogue firm.

Employees and managers now write to each other more than they talk to each other, often using their personal cell phones.

PHOTO PROVIDED BY DIALOGUE

Élise Corriveau, investigator and president of Dialogue

The border between private and professional life is no longer certain. People are talking to each other more and more by text message and end up sharing things from their personal lives. Sometimes this type of communication can be seen as quite intrusive and unwanted.

Élise Corriveau, investigator and president of Dialogue

The investigators are unanimous, the two years of pandemic have put the workers on edge. If the misplaced comma in an email, the camera closed in a virtual meeting and a failing internet connection become unsuspected incivilities, the reserve of tolerance for inappropriate comments is, for its part, well and truly exhausted.

“I saw that with COVID-19, many people were more sensitive and more fragile than before. Inappropriate behavior, incivility, it no longer works, people will raise their hands faster. »

The word of one against that of the other… recorded

In cases of psychological harassment, it is often a question of the word of one against that of the other, especially when the events occur without witnesses. While we have often debated the use of cameras by employers to catch employees at fault, it is now the turn of employees to draw their cellphones to support their complaint, confirm the labor lawyers at Norton Rose Fulbright and Langlois Avocats.

“Over the past five years, more and more employees are registering their employers. It is in cases of disciplinary measures or cases of harassment or cases of performance management ”, specifies Marie-Hélène Jetté, partner at Langlois Avocats.

“These are processes that we did not see before,” says Éric Lallier, partner at Norton Rose Fulbright. I claim to have been unfairly dismissed and I am taking into evidence the recording that I made myself of the dismissal meeting without having told anyone. »

“Separating the true from the false, when there is a way that allows us to do so, it is always interesting. The question is at what price, ”warns Éric Lallier (see other text).

Increase in complaints

The firms contacted by La Presse have all observed an increase in complaints handling requests over the past two years. Relais Expert-Conseil notes a 30% increase, while Drolet Douville claims to have to refuse the equivalent of two months of work per week.

At the CNESST, the number of complaints received increased dramatically from 2016 to 2019, then fell again in 2020 and 2021.

However, the complaints filed with the CNESST are only the tip of the iceberg, say the experts. Grievances filed by unions, complaints handled internally by organizations and investigations carried out by outside firms are not counted.

According to investigators, the increase in 2019 is attributable to the #metoo movement, high-profile cases, the obligation for companies since January 2019 to have a policy for the prevention of psychological and sexual harassment and for handling complaints, as well as increasing the time limit – from 90 days to 2 years – for filing a complaint.

It is this obligation to have an internal policy that reduces the number of complaints to the CNESST, analyze the experts.

“Before, employees turned to the CNESST. Now they go to see human resources, their union or call the number indicated in the company’s internal policy,” says Luc Chabot, whose firm handles the files of companies that do not have the structure to do so or who choose to give the mandate externally.

PHOTO PROVIDED BY DROLET DOUVILLE

Marie-Josée Douville, President and Partner at Drolet Douville

“The message in terms of prevention is above all to favor internal treatment mechanisms,” adds investigator Marie-Josée Douville. The deadlines will be shorter and the plaintiff will avoid hearings before the Administrative Labor Tribunal.

It is not because a complaint is filed that it will be accepted and will end in a sanction. However, even if, after investigation, the complaint turns out to be unfounded, the experts point out that it testifies to a real problem within the workplace and that employers often take this opportunity to correct certain practices.

Abuses of Big Brother at work

You don’t need to be a spy or commissioned investigator to record your work life and interactions with colleagues and managers. These video and audio recordings may be accepted as evidence in a complaint for psychological and sexual harassment. But beware of excesses, warn the experts.

Imagine a workplace where employees can check in on their bosses and colleagues at any time. Where everyone suspects themselves of doing it. Where employees deliberately notify their managers that the conversation will be picked up and stored on their cell phone. Perfect ingredients to create a climate of mistrust worthy of former communist countries or today’s China.

“We don’t live our lives from day to day to prepare for a dispute that we will probably never have with our employees,” recalls Marie-Hélène Jetté, partner at Langlois Avocats. Any employer-employee relationship requires a minimum of trust. »

PHOTO ANDRÉ PICHETTE, LA PRESSE ARCHIVES

Me Marie-Hélène Jetté, partner at Langlois Avocats

The labor lawyer cites a case she had to deal with where the employee warned his manager each time that he was going to be recorded, because he found his words approximate and changing. This sword of Damocles had created an obsessive caution in the manager’s choice of words, a constant and unbearable tension. “It led to an end of employment, because there was no more mutual trust,” she recounts.

The recording should be a tool of last resort for the employee in a difficult situation, who has tried unsuccessfully to resolve the problem with the manager and who believes that this is the only way to prove what he alleges, says for his part Éric Lallier, partner at Norton Rose Fulbright.

“It’s one thing to bring the recording to court, but am I going to put it on social media, make it public?” “raises Éric Lallier. Using recordings indiscriminately can easily go wrong.

Anti-recording policy

This marked tendency for clandestine registration in companies has even forced employers to establish anti-registration policies accompanied by disciplinary measures, maintains Éric Lallier, who himself advised his clients.

PHOTO ROBERT SKINNER, LA PRESSE ARCHIVES

Me Éric Lallier, partner at Norton Rose Fulbright

The goal is not to hide things, but to have a workplace with a healthy climate.

Me Éric Lallier, partner at Norton Rose Fulbright

“However, if a person is the victim of a situation or an assault by a member of the organization and a way of proving it as a last resort is a recording, it is obvious that the courts would give some weight to that evidence. »

Evidence accepted in court

The Order of Chartered Human Resources Advisors recently indicated in its newsletter that the Administrative Labor Tribunal had accepted video evidence in 2021 in a case of psychological harassment.

In the case described, the complainant was sitting in his vehicle and having a short discussion with his employer through the open window. As the employer was about to leave the premises, he struck him in the face. It was this scene that was filmed by the complainant’s wife using her smart phone and entered into evidence.

Contrary to popular belief, an individual can record a conversation in which he participates without the knowledge of others, and later file the recording in evidence. On the other hand, you need a court warrant to record a conversation in which you do not participate without people knowing.

As with any evidence, the court must consider whether the audio or video recording is relevant, reliable, ostentatious evidence and what kind of habit it could create, explains Marie-Hélène Jetté.

The fact remains that the courts are in search of the truth. If we have good reliable evidence, which was made under reasonable conditions and which allows us all to see the truth, the courts will be inclined to admit it.

Me Marie-Hélène Jetté, partner at Langlois Avocats

When no one wants to be watched

The lawyer indicates that the bosses are now wondering if it is reasonable that the employees have the right to record them, since they do not have the right to put a camera on the desk of an employee permanently without reason. At the beginning of the pandemic, this question was rather raised by employees, when we saw an alarming explosion in the sale of spyware intended for companies around the world. Software that is used, it is argued, to measure productivity, but which can activate the camera of employee computers.

“In some companies, if you want to access an employee’s cell phone, there is a whole process that governs this action,” explains Luc Lefebvre, president and co-founder of Crypto-Québec. While there are other companies where you can access any cell phone and there is no one who knows, who will never know and who will come and ask you questions. »

The computer security expert says that in a large organization where he worked, he saw the number of times Tinder was opened on a phone and who viewed the application. “An employee opened it 30 times an hour,” he recalls. Once you are on the corporate network, you have complete and total visibility. »

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