Little did I know what changes would arrive when I accepted the position at Hill Advisory Services almost 20 years ago. As I sit in another airport today, having finished a training session, and on my way back home, I thought it might be nice to share some thoughts, namely what I love about training.
Our little company basically does two things: we investigate and we train. This week I had the chance to train some excellent professionals and in the course of the training I was able to share some of my thoughts, hear some of theirs and have a few laughs.
What do I love about training investigators? That’s relatively simple, everything. This week in Calgary we offered Harassment Investigation, Level 1&2. I was able to spend 3 and 5 days with my group as we wove through two separate true life cases and worked with professional actors. The basics: we offer theory, then progress quickly into the business of “doing”. We focus on small group work and targeted discussions which enhance learning at every step. Level 1 features a case that is memorable for past participants and allows us to plan for, and interview a complainant, a respondent and a witness. During Level 2 we interact with two witnesses, and progress to the redirect interview and a finding in the case.
These tasks form the framework for the real important work: analysis and discussion related to the dynamics that exist in every case. We have a chance to talk about why people react the way they do, what words we should use, how to prepare, how to be focussed, how to deal with strange situations, how to stay within scope, and ultimately, the holy grail; how do we base a conclusion on the evidence presented so that the finding can stand up to external judicial review!
My favourite part of every training session is that point, (and it can come at any time) where we transfer through some of the more concrete ideas and into the more abstract. In understanding some of the underlying dynamics, we are better equipped to handle a diverse experience in the future. It’s not so much about “how do you do it” in the form of a flowchart or template and more about “here’s some things that I think about when confronted with similar situations”. In this way, we all grow. Without honest participation, this is not possible.
I have been fortunate enough to develop this training package and see the growth in countless groups over the years and at the end of every training session I truly feel as if it was the best one to date. That’s a great feeling!
If you have been a part of our training, thank you for your humour, your hard work, your questions and your compliments. If we have yet to meet, I hope to see you soon, for the best training I have ever conducted!
How failing to pay attention to detail and a decision to terminate an employee for workplace violence combined to create an overturned decision
As a Harassment and Discrimination investigator, I often find myself conducting investigations that have similar characteristics to the case presented below. Workplace violence is one of the most frightening and damaging actions in any workplace, and it is especially important to take quick, decisive action which is based on evidence to resolve the issue and to attempt to begin repairing the damage done. A negative decision on appeal can have many impacts. The second fascinating concept involves proper progressive discipline and the concept of front line supervisors and managers dealing with issues as they arise, rather than attempting to demonstrate a pattern post—culminating incident.
*All names and other identifying details altered to protect the innocent (and not so innocent) *
This case involves two female employees (Anne and Sophie) and an interaction deemed to be a violation of the employer’s workplace violence policy. Anne worked for the employer for 10 years and allegedly had a history of harassing and bullying co-workers (more on this later). The incident involved a verbal argument which escalated to a physical confrontation in an office environment where Anne pinned Sophie in her chair (which was wedged against a wall) and refuse to cease the behaviour. A witness to the events intervened when they heard Sophie ask for help and say she could not breathe. Nothing was said to Anne and she went home. An investigation was conducted later and Anne was terminated. The union grieved the termination and an Arbitrator was assigned.
Nobody reported the incident immediately and some reasons given were that co-workers were afraid of Anne as she had been harassing and bullying them without seeming consequence for some time. They were afraid of potential retaliation. One witness said she did not want to report the behaviour as she felt it would constitute “ratting out” a fellow union member. The incident did come to the attention of management when Sheri (a leader) approached some of the workers and asked how things were going. Sheri picked up on some tension and followed it up (Well done!).
Sophie told Sheri what happened in a lengthy and emotional conversation and also related incidents of being bullied and specifically of Anne putting her in a headlock the previous summer and of Anne deliberately unzipping Sophie’s top one day. Sheri asked Sophie to put the information in writing and assured her that retaliation would not be condoned.
The element of asking or even requiring a complainant to put complaints in writing strikes me as potentially counter-productive and potentially fraught with liability. If we wonder about potential outcomes of an employee sharing specific concerns with a leader that are prima facie breaches to any policy, much less the harassment policy, and we ask them to put the allegations in writing, what do we do with time delays, reluctance to put items in writing and even withdrawal from the process or changing information? Would a better way not be for the leader to take notes about the concerns, consult with partners, and when appropriate to the concern, initiate a more formal process and interview with the complainant to get full detail? In my opinion it is a much better path.
After some prompting Sophie provided a written statement, however it did not refer to the past bullying instances which she had reported to Sheri (now we have a problem).Sheri interviewed witnesses and obtained statements. She also interviewed Anne and read out Sophie’s statement to her. She did not provide a copy beforehand and did not give her any time to prepare a defense (contrary to the Principles of Natural Justice). Sheri did not mention the additional information that Sophie had given her orally but which she had omitted when writing it up. Anne denied the context of the situation and indicated she had simply been giving Sophie a “goodbye hug” and there was no conflict whatsoever.
The arbitrator preferred the evidence of Sophie and the two witnesses to that of Anne’s. There were other elements to the case in which the arbitrator illustrated points wherein Anne’s credibility and the veracity of her testimony was challenged significantly.
The employer provided the rationale for Anne’s dismissal as: the incident of workplace violence, as well as “unprofessional conduct unbecoming” of her position and relied on various complaints about her behaviour in the past several years. It is important to note, the arbitrator stated, that although Anne had been counselled and spoken to about her interactions with others, in the two years preceding her discharge Anne was never disciplined as a result of her behaviour, conduct, or attitude towards other employees.
The employer relied on the one incident and also referred to a general awareness of previous incidents but did not in some cases have all the relevant information about those events and in the letter of dismissal did not rely on the past incidents. The arbitrator accepted the union’s position that the past history could not be relied upon to constitute cause as the proper progressive discipline had not been done.
The arbitrator conducted a point by point analysis of the dismissal decision as it related to the points made by management in the letter of dismissal and found that many of the grounds did not have the proper underpinning (ie formal action and documentation, and lack of proper process). The arbitrator ruled that the elements were not sufficient for dismissal.
In hindsight, I am sure we can all see that proper disciplinary processes could have played a role and could have prevented a finding that had an employee who had harassed and bullied others, (up to and including physically) in the workplace from being re-instated. This costly process could have been avoided entirely with leaders who are committed to leading and are provided the skills and understanding of scope as it relates to managing workplaces appropriately.
The termination was overturned, however, the arbitrator found Anne should not be reinstated to the workplace as she was likely to repeat the behaviour. The arbitrator wrote a well-reasoned opinion in justification of this conclusion, including that Anne steadfastly denied any wrong-doing and that her testimony had so many conflicting statements and was so totally self-serving.
In the end, the parties were instructed to negotiate an appropriate financial settlement, in lieu of re-instatement. Those direct costs can be added to the pile of indirect costs that were incurred by the mis-management of this problem employee in the workplace for the better part of 10 years.
What are we to learn from cases like this? For me, it re-enforces a strongly held belief; address problems honestly, and appropriately at the time with a steady gaze fixed to the leadership of the entire organization. Inform every conflict decision with this philosophy and that will get you half-way there. I’d love to hear what you think, you can connect with me all the usual ways!
How one Employer in Alberta recently handled an investigation
In preparation for our upcoming workshop in Alberta, I thought I would research an Alberta case this time around. As always, it provides great learnings for the Investigator in all of us. I look forward to meeting those of you attending our sessions and getting into the business of asking questions!
This case occurred in Edmonton and was heard by an Arbitation Panel. The Arbitration flows from Mr Smith’s grievance related to his dismissal. Mr Smith was a heavy duty mechanic for about two years prior to his dismissal for making disparaging and racist comments to a co-worker. Mr Smith denied making the comments. Part of the agreed statement of facts was reference to Mr Smith having undergone the Employer’s Respectful Workplace training and reference that he was provided documentation to that effect.
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The incident that led to Mr Smith’s dismissal was documented in email amongst the management team of the employer and details the statements Mr Smith is said to have made to a fellow employee which include: referring to him as a “monkey”, and saying “I am going to use your black skin to wrap around my steering wheel”. The statements were witnessed by two co-workers, over the course of a few days and on one occasion a co-worker attempted to intervene.
Interestingly, both Mr Smith and the target of the comments, Mr Jones were fairly recent immigrants to Canada. Mr Smith had immigrated from Romania and Mr Jones had immigrated from Sudan. Both men had learned English as a second language before they began working together. The relationship between the two seemed fine before the incident. Mr Smith had some extensive dental work done and returned to work. Mr Jones thought that perhaps Mr Smith was being affected by some medication he was on as Mr Smith started making racist and offensive comments to him. Mr Jones did not know what to do and was upset in the workplace.
In his testimony Mr Smith referring to being at the dentist and recovering from anesthesia. He referred to a discussion involving animals in Africa, but denied calling Mr Jones a “monkey”. He also denied swearing at him and referring to his mother in a derogatory fashion. He testified that he had made a reference to Mr Jones’ skin being soft and compared it to a steering wheel leather. He said that discussions on Mr Jones’ skin texture were not uncommon and he did not believe the were offensive. Mr Smith asked the Arbitration panel to check with witnesses, who he was sure would support his version of the events.
WItness testimony confirmed Mr Jones’ testimony and directly contradicted Mr Smith’s. The employer interviewed all involved. It was noted that in some of the witness testimony, there was no reference to the word “monkey”. The witness indicated that he had not been shown a copy of the statement that he gave and was not given a chance to review the content.
Upon speaking to witnesses, the employer’s representatives determined that the comments were made, that Mr Smith denied them and did not seem to appreciate the gravity of his actions and they recommended termination.
During the interview with Mr Smith, the investigator was asking questions and typing essence responses into a computer as Mr Smith was speaking. Mr Smith was agitated and refused to answer the investigator’s questions if she kept typing. Eventually another investigator took over and asked the questions. The meeting ended with Mr Smith no longer answering questions or making eye contact.
A few lessons to be learned here. First, it is solid practice to have a witness review the statement generated from a formal interview. Not only does this provide a much clearer version of the evidence, it also provides an agreed upon document that can be tendered as evidence should a case be appealed to another jurisdiction, which it was here. Second, it seems the investigators may have shied away from using the offensive terms that were spoken in their notes. While this may not be the case, it brings to mind the tendencies we can all have, to “soften” or be overly general with respect to offensive evidence. Generally, if a term is used and will form the basis of a decision on employment status, it is better to include the exact phrasing rather than place your own “lens” in the way. In this case, the lack of inclusion of the phrase (although the witnesses recall stating it) is used by the Union counsel to attempt to overturn the employers decision at Arbitration. Third, the issue of typing while trying to conduct an interview and the effect of the investigator upon a person being interviewed. Quite simply, in my opinion, the most important thought process for a successful investigator is not “how am I going to take notes” and is more along the lines of “how is my process working (or not) for this particular witness, at this time and is there any way I can change what I am doing to help with the process”. The argument that a person being interviewed is being “uncooperative” or “disrespectful” happens all too often. The core of our practice and teaching is learning to overcome these manners of thinking and investigating in order to present a solid case finding, backed by the evidence, which is not influenced by bias or pre-conceived notions, and that can stand up to third party scrutiny. There are many working parts.
In the end, the arguments from the Union counsel were not quite enough, in a majority decision, the Arbitration panel upheld the employer’s decision.
While I agree with the ultimate disposition of this case, it strikes me that several of the hurdles the employer counsel had to navigate could have been mitigated with a more thorough process from the beginning. There’s just no telling which cases will go to appeal, so our motto is “treat each case as if it might”.