Westjet cover up: Alleged sexual assaults by pilot

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True North
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by True North »

gasbag1 wrote:Photofly

The Canadian Charter of Rights trumps all judgements. No company can tell any employee who or who not they can associate with with in reason. Any reasonable person would understand that humans are not loners. Any company that would require, no 2 employees can be together alone is ridiculous. Normal business could not be completed with that restriction. How could most flight decks be crewed? So how can you make a rule for work and a different rule for layovers.

Even if flight crews were to all men or all female, there can still be many different kinds of harassment.

EDUCATION is the key and along with education is investigation and if necessary, termination. I think all federally regulated companies must have a harassment policy, larger companies have a harassment officer who investigates any complaints.
Are you guys for real? Do you actually think that in this country, in this day and age, that someone who is educated enough to land a job flying a 737 at WestJet isn't educated enough to know what sexual harassment is?

I think photofly has come up with a very realistic solution. Freedom to associate?? You can associate in the restaurant, in the bar, at the pool or on the beach. Just not one on one in a company-paid-for hotel room. Good luck challenging that in court. Companies have policies against employees dating for crying out loud. It becomes a condition of employment and if you don't like it, you're free to seek employment elsewhere.

Whatever the outcome of this debacle, whether it's shown that WestJet was negligent or even if they did everything they could - especially if they did everything they could, I expect they will introduce some new and quite possibly "draconian" measures to protect themselves in the future.
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brooks
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by brooks »

So she got intoxicated and went to Pilot M's hotel room for some "light balcony conversation". Another flight attendant comes forward who had a sleep over but because it wasn't a great sleep over it was probably sexual harassment.

This is turning into a Jian Ghomeshi 2.0. In my opinion if Mandalena doesn't stop with the sassy TV interviews she risks damaging her case and ultimately might be looking at a defamation lawsuit, considering her FB post and public petition to oust Greg S.
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photofly
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by photofly »

I don't think it's her petition.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by Roar »

I'd like to preface my comment by saying that I am in no way accusing nor defending either the Pilot or FA's actions, I have no idea what happen therefore cannot pass judgement .
I am simply making a comment on an interesting point this thread has brought up. That point is when you are in your hotel room that is paid for by the company, are you "at Work" ?
The government of Canada defines work as. "Generally, "work" is given a broad definition as using or engaging the services of another.
Furthermore, it can be said that an employee is at work when he or she is at the disposal of the employer and under the employer's direction at the place of work." Given that definition I would postulate that since the employee at the hotel is not at the disposal of the employer as they are "off duty" and since the hotel becomes the employees de facto home they are no longer "at the place of work". Therefore the employee does not meet the criteria for "at work" while at a hotel (my opinion only).

Not to pick on you Photofly, but you have been the chief poster that the employee is under the direction of the employer while at the hotel so I'm sure you will disagree with me on the above point. Lets suppose that you are correct and I'm wrong. Then would it not follow that since the employee is at the disposal and under the direction of the employer at the hotel and therefore "at work", that said employee should be compensated for all those hours at the hotel? By that I mean, aviation is federally regulated in terms of the labour code and since aviation has variable schedules most aviation companies use an Averaging of hours plan which removes the requirement to pay over time after 8 hours of work per day or 40 hours per week and replaces it with an average over a defined period of time, using 40 times the number of weeks in the averaging period. For example lets say the employer uses a 52 week average that equates to 2080 hours a year. Given your position that the employee is at work for what amounts to 24 hours a day while on the road, after only 87 days on the road the employee should be getting overtime.
If you are correct in your assertion, and I certainly hope you are, that's great news as aircrews are about to make a lot more money!!

I am certainly not a labour lawyer and could very well be misinterpreting the labour code. Thoughts, comments, explain to me where my interpretation is flawed, I'm more than happy to listen.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by boeingboy »

So she got intoxicated and went to Pilot M's hotel room for some "light balcony conversation". Another flight attendant comes forward who had a sleep over but because it wasn't a great sleep over it was probably sexual harassment.
Really? Try reading about what happened. Dont trivialize what happened.

All 6 crew went to the hotel room and were socializing. After a while they left one by one. The FA in question then tried to leave and he attacked her.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by photofly »

Roar wrote:I'd like to preface my comment by saying that I am in no way accusing nor defending either the Pilot or FA's actions, I have no idea what happen therefore cannot pass judgement .
I am simply making a comment on an interesting point this thread has brought up. That point is when you are in your hotel room that is paid for by the company, are you "at Work" ?
Here is what the Ontario Human Rights Commission has to say:
http://www.ohrc.on.ca/en/sexual-harassm ... fact-sheet
"Applying the Human Rights Code in employment
The Code says every person has the right to be free from unwelcome advances or solicitation in employment. “Employment” includes applying and interviewing for a job, volunteer work, internships, etc. It also includes activities or events that happen outside of normal business hours or off business premises, but are linked to the workplace and employment.

Example: An employer may be held liable for incidents that take place during business trips, company parties or other company-related functions."
Accepting the different jurisdiction in this case, it's hard to argue that different principles entirely will apply under Federal jurisdiction. The Supreme Court of Canada declined to hear an appeal on this point in Simpson vs. Consumer Association of Canada:
https://www.canlii.org/en/on/onca/doc/2 ... 23994.html
It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-hours interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment.
Nobody in this case - certainly not Westjet - claims the employer has no responsibility for what happens between staff in hotel rooms on layovers.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by Roar »

photofly wrote:Here is what the Ontario Human Rights Commission has to say:
http://www.ohrc.on.ca/en/sexual-harassm ... fact-sheet
That's interesting and seems reasonable. Is there a similar definition that covers Federally regulated workers? And I'm unfamiliar with the OHRC who are they, do there definitions equate to legal definitions?
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by complexintentions »

boeingboy wrote:
So she got intoxicated and went to Pilot M's hotel room for some "light balcony conversation". Another flight attendant comes forward who had a sleep over but because it wasn't a great sleep over it was probably sexual harassment.
Really? Try reading about what happened. Dont trivialize what happened.

All 6 crew went to the hotel room and were socializing. After a while they left one by one. The FA in question then tried to leave and he attacked her.
Uh...is that last bit a legally proven fact? Or just hearsay?

Because you see, that's actually the bar to clear. Not just someone's word.

That's the problem. Too many people are reading allegations as "something that happened". Wrong, both legally and practically.

Unfortunately the complainant's openly displayed militancy about gender issues doesn't suggest an unbiased outlook on the situation...
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Shady McSly
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by Shady McSly »

I don't think Westjet's going to make the 'Top 100 Employers of 2016' list.
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Rockie
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by Rockie »

Well photofly, your elegantly simple solution is actually the law in many parts of the world. Makes one wonder why no Canadian companies have adopted it, I'm sure Westjet would try anything at this point.

Maybe if she were wearing a burka this wouldn't have happened....

In fact make everybody wear a burka on layovers to avoid that pesky "sexism" thing. Call it an off duty uniform.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by photofly »

On the contrary: you can have as many threesomes and orgies as you like. And wear a string bikini or a thong during all your off hours, if it pleases you.

I don't actually think WestJet has the nerve to do something like that. But - if you put it about that you're the party animal of airlines, you're going to have to do more than every other airline to protect your staff. I just wonder - what?
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by True North »

boeingboy wrote:
So she got intoxicated and went to Pilot M's hotel room for some "light balcony conversation". Another flight attendant comes forward who had a sleep over but because it wasn't a great sleep over it was probably sexual harassment.
Really? Try reading about what happened. Dont trivialize what happened.

All 6 crew went to the hotel room and were socializing. After a while they left one by one. The FA in question then tried to leave and he attacked her.
Typical member of the mob. You heard it on the news so it must be true. Go and actually read the Statement of Claim then come back and we'll talk.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by Longtimer »

This is how things work down under:
Balancing the Act: ADCQ newsletter -

When does work life stop and private life start?



Deputy Commissioner

This article by Neroli Holmes, Anti-Discrimination Commission Qld Deputy Commissioner, first appeared in Balancing the Act Issue 25, Nov/Dec 2007, pages 3-4.


Anti-discrimination legislation across Australia contains provisions that unless an employer has taken reasonable steps to prevent harassment and discrimination, they will be legally liable for the conduct of their employee who has done the harassing.

Workplace rules and codes of conduct can govern employees' behaviour during working hours and in the workplace. Employers have the right to expect certain standards of behaviour of their employees, and they have the right to impose disciplinary sanctions, including in some cases dismissing an employee, when those standards of behaviour are transgressed.

The tricky issue confronting employers is how far outside normal working hours, and the usual workspace is an employer legally responsible for the conduct of their employees?

Let's have a look at a few cases which could clarify some of these issues.

Xmas Parties

There is clear support that the conduct of staff at the staff Xmas Party is conduct within the course of a worker's work, and that an employer can be vicariously liable for any harassment that occurs at the party. The employer has the right to discipline an employee for engaging in sexually harassing behaviour at a Xmas party.

In Thomas & Westpac Banking Corp (1995) EOC 92–742 a worker was dismissed following a serious act of sexual harassment at the staff Xmas party. The bank had clear sexual harassment guidelines that outlined several possible disciplinary measures in the case of inappropriate behaviour. The Industrial Relations Court of Australia upheld the dismissal.

What about the party that kicks on after a Staff Xmas party has finished?

Unfortunately, the law in this area is less clear.

Some of you will be familiar with the case which recently received a lot of media attention, where Telstra was found to have unjustly sacked one of its young female employees due to her conduct following a belated Xmas Party (see Streeter vTelstra Corp Ltd (2007) AIRC 679

A function had been arranged, and a number of staff had booked a hotel room nearby where they planned to stay overnight. After the main function had finished three female staff checked into the room and went to sleep. The female employee in question, Ms S, who was very drunk, arrived shortly afterwards, and a number of incidents occurred during the evening involving her and two male Telstra employees. She was summarily dismissed following an investigation into her conduct. The reasons given for her termination were –
•She sexually harassed a fellow Telstra employee, Ms H, by being naked in the bath of the hotel room with other naked Telstra employees in Ms H's presence,
•She failed to treat Ms H with respect, by being present whilst she went to the toilet,
•She sexually harassed Ms H, Ms B and Ms A, all 3 of whom were Telstra employees by engaging in sexual intercourse just metres from where they were with two different men on two occasions in their presence.

Ms S argued that Telstra did not have a valid reason to terminate her employment for the alleged serious misconduct, as there was no nexus to her employment. This argument was rejected by the Commissioner.

However, while he found that the conduct was inappropriate and inconsiderate, most of the conduct did not constitute sexual harassment as defined in the Sex Discrimination Act, or did so in a relatively marginal way.

Most of the behaviour occurred well away from the workplace, after rather than during a work function, in a hotel room that was booked and paid for privately. The AIRC found that in all the circumstances Ms S's conduct was not so serious as to constitute a valid reason for terminating her employment.

What about conduct in the lunch hour?

A New Zealand case, Smith and Christchurch Press (2000) NZCA 341, has looked at the situation of two employees working together. The male employee asked the female employee if she'd like to have a few drinks at lunchtime. She accepted the offer. She was surprised when he collected her in his car and drove to his house.

After some sandwiches and drinks he suggested they move to the bedroom. She alleged she made it clear she did not wish to engage in sexual activity with him. She was embraced by him while he fondled her. They then returned to work.

The New Zealand Court of Appeal found that there was ample basis for the conclusion that was a sufficient nexus between the dismissed worker's conduct and his employment to warrant his dismissal for sexual harassment. The Court said “ the conduct was between two present employees, arose out of the work situation and more importantly, had the potential to adversely affect the work environment. ” The Court said it was irrelevant that the actual sexual conduct had occurred outside the workplace at lunchtime.

It constituted sexual harassment and it occurred in the course of employment.

The drinks after work cases

There are some contrasting decisions in this area, and you'd have to conclude the law is not as clear as you would wish on when an employer's responsibility ceases for this type of after hours conduct.

Two cases have found after hours drinks are not conduct that occurs in the course or work, while one recent case has found this is work-related.

In a 2005 Queensland Industrial Relations Commission case, Johnson v Department of Justice (2005) QIRC 188 the conduct occurred on a Friday night outside the State Law Building in Brisbane. The conduct included a male officer from the Department of Justice placing a hand on a female colleague's buttock, making a comment with sexual connotations to the same colleague. The officer concerned admitted each of the allegations made by his female colleagues.

Commissioner Blades said that although the comments were vile, lewd and stupid they were made while the officer was substantially intoxicated, and the conduct was not serious enough to permit the employer to interfere in out of work behaviour.

Tichy v Department of Justice – Victoria (2005), also found after hours drinks were private in nature and were not employment-related. In the case of NSW Attorney-General Department v Miller (2007) NSWIR Comm 33, however, the NSW IRC did find sexual harassment by a supervisor of several of his staff at a hotel out of work hours was incompatible with his duty as an employee.

Attendance at conferences

These cases take a fairly consistent approach.

A number of cases show that where employees were attending conferences, and were staying in accommodation paid for by the employer, employees who 'after hours' sexually harassed another colleague also attending the conference were found to have been doing so 'in connection with work'.

Employees are at a conference being paid for by their employers, and are put in a situation of proximity to each other as a result of this factor.

In these situations, employers have been found to have acted reasonably in dismissing the harassing employees. Employers have also been found to be vicariously liable for their employee's harassing conduct, and ordered to pay damages (see Markharm v Graincorp (2002) AIRC 1318 and Leslie v Graham (2002)FCA 32)

Staff accommodation

In relation to staff accommodation, a case where a male employee, entered uninvited , a female employee's room at about 3am and engaged in sexual advances or requests for sexual favours, the Federal Court held the conduct occurred in accommodation occupied because of their common employment. It could not be said the common employment was unrelated or merely incidental to the sexual harassment.

The accommodation was provided by the employer. The employee's rooms were in close proximity to each other and they were accessible. The conditions in part created an opportunity in which the conduct could occur. It was 'in connection with' the employment, and the employer was vicariously liable. The female employee was awarded damages (see South Pacific Resort v Trainer (2005) FCAFC130).

Unsolicited phone calls after work

A case McManus v Scot Charlton (1996) 904 FCA 1, involved a federal public servant, whose superiors had ordered him to desist in making out of hours telephone calls that were unwelcome and sexually harassing to the home of a fellow female employee. Mr McManus challenged the legality of the order, saying it was not work related conduct. The Federal Court upheld the employer's right to make the order.

To sum up:

The expression 'in the course of work' in the context of anti-discrimination legislation has a broad meaning and is one of practical application. The acts have to be in some way related to or associated with the work or employment.

Overall Guiding Principles

Recent cases show that out of work conduct can become the employer's business and responsibility if the harassment –
•can reasonably be said to be a consequence of the relationship of the parties as co-employees (that is it is employment related); and
•the harassment has had and continues to have substantial and adverse effects on workplace relations and workplace performance because of the proximity of the harasser and the harassed person in the workplace.

Suggestions for Employers

Prevention is the best strategy:
•put in place clear codes of conduct and equal opportunity policies
•ensure the workplace policy on appropriate behaviour is kept up to date and implemented
•train existing and new staff on appropriate behaviour in the workplace
•train supervisors and managers and regularly update their knowledge in discrimination and harassment law.

If harassment occurs:
•have in place a process to deal with complaints quickly, privately and seriously
•seek expert advice, especially if the harassing behaviour occurs out of hours
•ensure the discipline is proportionate to the seriousness of the conduct (dismissal is not always the appropriate or only disciplinary option that should be pursued). Consider issuing warnings, ordering counseling, requiring closer supervision of the offending employee, transferring the employee or demoting the employee permanently or for a period of time
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by gasbag1 »

For True North and others pilots are in general intelligent enough to understand most concepts and rules. However after 20 years as a Union rep. I have seen many pilots do some really dumb things.

An old idea that BA had was to put the Captain in a separate hotel from the rest of the crew, that was the extreme. I believe United has many separate hotels where the pilots stay in one and the FA's in another, I don't know if it is policy. Of course the pilots may be all male, all female or one of each, so even the separation of backend and pilots is not perfect. And any separation would cost the employers more money.
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photofly
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by photofly »

I'm fairly sure that was just because BA captains though they were better than they were :-) I don't think harassment had been invented back then.

By the way, gay people can also harass; it's not just a man-woman thing.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by Rockie »

BA captains thought they were special and so did everyone else.

Ah....the good old days.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by tbaylx »

Photofly,

I work for a company that pays for my accommodation at home too while on deployment. Does that mean now I can't have anyone over at home on my days off too?

It really bugs me when a few isolated incidents occur and everyone is tarred with the same brush. How about something reasonable as a solution such as the company issuing a memo reinforcing its harassment policy, then dealing with the very rare offenders on a individual basis.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by photofly »

tbaylx wrote:Photofly,

I work for a company that pays for my accommodation at home too while on deployment. Does that mean now I can't have anyone over at home on my days off too?
If it was a common practice for you to provide overnight accommodation for coworkers while they are on company business then the company should be concerned. Not just about harassment, but for instance if another person was hurt by a fall, poisoned by your food or bitten by your dog they might have a claim against the company for allowing them to stay somewhere unsafe. It would be better for the company to provide accomodation for them in a hotel.

If it's your private family accomodation, overnight guests are already known to you and are there by your invitation, and their stay is entirely unconnected with company business, it would be very hard to argue that if you assault them the company could have reasonably foreseen it or had any duty to your guest to protect them from you.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by Rockie »

How many companies in Canada, from any industry, prohibit their employees from being alone with someone else in a hotel room photofly? I'm curious.
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Re: Westjet cover up: Alleged sexual assaults by pilot

Post by photofly »

How many companies encourage the party culture Westjet allegedly does, among thousands of staff regularly staying together in hotels, and have a recent spate of sexual assault allegations to deal with? I'm curious, too.
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