Breach Confidentiality At Your Own Risk
Managing progressive discipline important too
The Employer provides heat treatment services in industrial plants and Gerry worked in Alberta. Mary worked in the same office and conducted Administrative tasks. Joe was the Operations Manager and was married to Mary.
One day Mary disclosed to Bob, the Regional Manager, that Gerry had ‘grabbed her bum’ in the office. The Employer commenced an investigation and conducted interviews of both Mary and Gerry. Gerry denied ever touching Mary. The Employer determined that it would be necessary to separate Gerry and Mary during the investigation and further concluded it would be impossible to do so within the small office in Alberta. The matter was further complicated by the fact that Mary’s husband was Gerry’s supervisor.
The Employer wanted to keep the matter confidential while the investigation into the allegation of sexual harassment proceeded. They quickly transferred Gerry to a plant in Ontario and cautioned him to keep the matter confidential.
The Employer first raised the issue with Gerry in the morning one day. By the afternoon of that same day Gerry had packed his bags and was on a flight to Ontario. Gerry was extremely upset by what he considered to be false allegations and unfair treatment. He told a number of employees about the allegations and his forced transfer to Ontario. The information swept through the company leading to wide-spread gossip among employees and resulted in the complainant being identified. This was exactly what the Employer had hoped to avoid.
The Employer concluded through it’s investigation that it was inconclusive whether Gerry had in fact grabbed Mary’s ‘bum.’ Nevertheless, they terminated Gerry’s employment for breaching a direction to keep the matter confidential while the investigation proceeded. Gerry filed a grievance claiming he was dismissed without just cause.
Bob had lunch with Mary and Joe one day when he was in the office in Alberta. Mary told him that Gerry had grabbed her ‘bum’ as well as some other concerns. They discussed how the matter should be dealt with. Mary and Joe were embarrassed and wanted to keep this matter quiet.
The Employer had a “Workplace Harassment Policy” that outlined procedure which included getting the VP of HR (Frank) involved. Frank was advised and phoned Mary to obtain details of the allegation. Frank then called Bob and asked to speak with Gerry over the phone.
Frank was the first Employer agent to apprise Gerry of the allegations. Gerry denied them and after the phone call,Bob began to discuss the process with Gerry. He said that an investigation would be undertaken and that first and foremost maintaining privacy was very important. Bob advised Gerry that they needed to contain it as much as possible since that would protect everybody including Gerry. Bob told Gerry that only a limited number of people knew about the matter. Bob believed Gerry accepted and understood that it was important to maintain privacy although Gerry did not expressly state that he agreed or disagreed with the instruction.
Frank contacted Bob later on and advised that the procedure was to separate employees during an investigation. Bob replied it would be difficult with in Alberta as it was a very small office. Gerry was given the option of resigning and returning to his home in the Maritimes (the Employer would pay for the flight) or of working with another area of the Employer in Ontario. He chose to take the transfer to Ontario. Bob arranged for a flight that day, advised Gerry to pack and drove him to the airport that afternoon.
During the arrangements, Bob received a call from Lance, a Union Rep who wanted to know the details of the allegations. Bob did not want to discuss them.
Bob returned to his workplace the following day and when he arrived, he noticed the workplace was in an uproar and everybody knew of the allegations against Gerry.
It was alleged that Gerry called a number of people and told them of the allegations against him. Mary indicated she was even asked about the allegations by two servers at a local restaurant. Gerry talked to members of his family, friends, Union Rep’s, supervisors, and co-workers.
Bob emailed Frank an update that day and indicated that he had coached Gerry, Mary and Joe to keep the matter confidential. He indicated Gerry called a number of coworkers and told them everything hoping to get the Court of public opinion on his side. He indicated that Gerry had decided to de-rail their process and that he had instructed the site in Ontario to lay off Gerry. Frank responded that same day and indicated that based on the information provided he would terminate Gerry immediately for insubordination. They believed Gerry violated his trust when he espoused to everyone the ‘results of our investigations’ and that confidentiality in any internal investigation was critical for the benefit of every employee involved.
The Arbitrator held that the sole matter under review was the issue of insubordination and did not deal with the matter of the initial allegation. In order to assess the matter of insubordination, the Arbitrator identified four essential elements; 1) An order was in fact given, 2) The order was clearly communicated to the employee, 3) The order was given by someone with the proper authority and 4) The employee either refused to acknowledge the order or actually refused to comply with it.
The arbitrator found that although a specific, direct order had not been explicitly given, it was clear that the Employer wanted Gerry to keep the matter confidential. He found Bob had the authority to give the order. The arbitrator turned to the matter of the circumstances and details of the conversations Gerry had about the allegations. He found that some of them were valid and did not fault Gerry for them, however he found that there was no need to tell several of the people that he did.
The arbitrator considered the level of discipline and determined termination was excessive. He based the decision of a analysis off actors including; a direct order had not been given, there was no warning that termination could occur, no progressive discipline had been followed, and Gerry was a good employee with no previous discipline.
Gerry asked to be reinstated. The Arbitrator concluded that such a situation would be a disaster for all as Mary and Joe still worked in the office. He concluded that the employment relationship was no longer viable due to the culpable conduct of Gerry in breaching confidentiality. He concluded that he would not reinstate Gerry but rather awarded damages.