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Conflict Shuffle

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When a transfer is more than a change in organization, but a catalyst for conflict

The pattern is so familiar, I am not even surprised to see it anymore; two employees are in conflict and the employer decides to transfer one of them instead of dealing with the issue directly. The result? One problem becomes two and a message is sent. Everyone learns they don’t need to get along, don’t need to be civil, don’t need to take a hand in conflict resolution and don’t need to be responsible for their own actions. Is this the intended message? Of course not, however it is the very real impact. In investigating hundreds of cases of harassment and conflict in the workplace over the last 14 years, this I can assure you.

This past week brought a new angle to the dynamic for me and I’d like to share it with you. I spent 10 days interviewing multiple Respondents and Witnesses to a conflict in the workplace. The details of the case are not important here. The realization that I came to near the end of the interviews was this: transferring a “leader”, one of those managers or supervisors that gets things done, resolves conflicts and cares and replacing them with a sub-par leader can be a recipe for disaster just as much as transferring a “problem”.

I first met a cast of management I assessed to have varying levels of managerial skill. I assess that skill as it relates to my area of interest, the ability to effectively motivate people and the ability to resolve conflict in the workplace. A narrow view perhaps, but an important set of tasks I think. In the interviews, I was disappointed to learn the managers and leaders of this particular part of the organization, an organization that I greatly admire for their top-down message of accountability and caring, seemed not to care and attempted to segment the accountability inherent in their positions to abdicate responsibility. I heard messages like, “I did not go check with that person because I did not think it was a problem” and “I am the manager, if I say that something goes in a certain place, that is a management directive”.

Near the end of my time I met another manager, one that impressed me a great deal. She used to be in the affected department, and used to be between the Complainant and the multiple Respondents in the organizational structure. She provided multiple examples of times she intervened in brewing conflict in a real and effective way – a human way. Guess what? The complaint came in after she left the department and had been gone for a couple of years. Although she continued to intervene in a department that was no longer hers, and although the Complainant continued to seek her out even though she was no longer his manager, the incidents began piling up and a complaint was filed. Would it have been filed if she remained? We will never know – I consider it unlikely.

The conclusion for me was powerful; be as careful transferring great managers as you are of managers that require more work. The wrong move can lead to more conflict than you desire. Oh, and let’s reward these top performers, work hard at finding them in the organization, work hard at smoothing off their rough edges, work hard at rewarding their example, in short, work as hard for them as they are working for you.

Next Up: I am looking forward to meeting a new class of Harassment Investigators in Halifax! We are going to have a great 3 days! I will bring you some of the learning points on our twitter feed and blog.

Welcome to Our New Home

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I am pleased to announce the launch of our new website. This update has been a long time coming and adds several key features to our online voice. We have a brand new, streamlined look and we have highlighted what we do best; investigations and training. The site was built by Wildly Social and I’d like to extend my thanks to Mr Kevin Wild for all his hard work and help! You can connect with him here.

We are now able to provide our content in a scaleable format — our site looks equally as incredible on your PC as it does on your iPad. Our newsletter has now been imported into our new blog. This allows us to deliver our content in a much more user friendly way, which means no more .pdf files! We have built in comment functionality on the blog so you can join in on the conversation. I look forward to being able to hear from you in a whole new way.

Please have a look around and send us your feedback on the new site, we’d love to hear from you. Thank you for your continued interest in our firm, I look forward to many more years of asking: ‘How Can We Help?’

 

– Dylan Hill, Vice-President

 

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A Tale of Two Investigators

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How hiring the right external investigator matters

Two investigations were conducted by external investigators, one by Hill Advisory Services and one by another company (Company X). In each case there were allegations of harassment in the workplace and extensive interviews were conducted.

Case 1, investigated by Company X resulted in a five-day suspension without pay being imposed and the affected employee filed a grievance related to the discipline. The Employer reduced the penalty to a three-day suspension but the case proceeded to arbitration.

Case 2, investigated by Hill Advisory Services, resulted in the termination of a long service employee. The affected employee filed a grievance related to the termination and the case proceeded to arbitration.

In Case 1, there were a number of challenges which culminated in the arbitration panel concluding that the Employer did not prove that the conduct of the Grievor relied upon by the Employer to impose discipline was proven. The Panel set aside the discipline and instructed that the Grievor be made whole for the loss of pay, benefits and any seniority resulting from the suspension.

In Case 2, there were a number of challenges as well, however, the majority of the Arbitration Panel concluded that the Employer had just cause to terminate the Grievor and dismissed the grievance.

The problems with Case 1

One of the major problems with the investigation in the case was that although an extensive number of interviews were held (54 in fact) there was a lack of clear documentation. The final report presented information that had been aggregated and appeared to be conclusions drawn from a number of sources of indefinite nature.

Some problems became apparent in the report. Wording like “Most interviewees appeared committed…” and “The majority of the witnesses appeared credible, reasonable, and fair when providing their information” pointed to some serious concerns.

In the Findings section of the report, Company X made statements like “Several witnesses verified the Complainant’s version of events referred to in her complaint” and “A thorough investigation of the Complainant’s complaint has exposed a history of abusive destructive behaviour of three controlling and manipulative employees.” Company X concluded that there had been breaches to the Employer’s Harassment Policy, and made conclusions related to the Human Rights Code.

Company X concluded that the Grievor had “lied to the investigator” when asked about whether he had overheard a remark. He had replied that he did not recall. The investigator determined that was a lie based on their perception that he would have recalled a comment like the one alleged and so he was not telling the truth.

The Employer accepted this investigation and the findings and suspended the Grievor for 5 days without pay.

Arbitration

The arbitration panel asserted that the report put forth by an external investigator “is nothing more than an explanation as to why the employer levied discipline.” The Employer must still prove the facts giving rise to the discipline.

Investigation issues

The Grievor provided a written response to the allegations against him. In addition, Company X interviewed him, however, the interview lasted for 30 minutes and the Grievor testified that the investigator cut him off, did not give him a chance to talk about what he wanted to talk about, and only talked about things that he wanted to talk about. He testified that the investigator would physically put down his pen and cut him off when he spoke.

The Complainant testified that the words in portions of the allegations were the investigator’s words, not hers and she indicated that she first became aware of some of the specific quotes attributed to her when she read the report..

Finding

The Panel found that there was no basis for the conclusion that the Grievor had lied to the investigator.

The Panel found that the Employer had failed to prove that the behaviour of the Grievor should have led to discipline.

Hill Advisory Investigation

In our 24 years of Harassment Investigation, we have rarely had a case proceed to Arbitration. However, in this case the Grievor filed a grievance related to his termination. The arbitration panel asserted the same principal, that any investigation held is nothing more than an explanation as to why the employer levied discipline, it is not in essence direct evidence, but rather hearsay.

This is where the similarities end, with the Hill Advisory Services process, we meet with all parties and compile signed statements from all interviewed. In this particular case, witnesses were called by the arbitration panel and asked to confirm their statements were their evidence, which they did as their signatures were present on the documents. Further, these witnesses were then open to cross examination on their statements and the arbitration panel concluded that because of that, the statements could be relied upon as direct evidence. The panel included various portions of the statements given to Hill Advisory Services in the arbitration decision, and included the cross examination on the various points.

The panel found that the Grievor’s behaviour warranted discipline. They turned to the question of whether the termination was appropriate, especially in light of the Grievor’s clear disciplinary record and 22 years of service. The panel found that the Grievor had been informed a number of times that his behaviour was unwelcome, though no formal disciplinary action had been taken and ruled that formal discipline would not have made any difference to his behaviour. The panel dismissed the grievance.

Conclusion

A proper Investigation is a clear and unbiased process that bases any conclusions on facts and helps to keep Employers safe. This philosophy is the reason for many of our techniques and why we conduct investigations in the manner we do. In the Hill Advisory case, the panel relied on many parts of the statements given to the investigators, that were signed and dated, and many portions of the report. There were no statements made by the panel that we had reached conclusions that were not based on the evidence and ultimately, even though a termination of a long service employee with a long service record is a serious decision, the panel supported that decision.

In the other case, comments in the report were questioned, and in our view, some of them were clearly inappropriate, not based on evidence and created the result of putting the Employer at risk.

In the end, the adage “Buyer beware” is appropriate. Know who you are hiring and how they will be conducting the investigation.

 

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