How “common” conflict behaviour end up at Human Rights and in costly investigation processes

In my work in the harassment investigation area, I am in the position to review countless cases where so called “normal” conflict behaviour leads down a path to unstable workplaces and costly investigative processes, both internal and external. In thinking about the issue I have become passionate regarding training Leaders to deal with conflict in an appropriate, flexible and nuanced way to help avoid some of the issues like the one below. In retrospect, it is easy to see where this relationship went off the rails. The costs (direct and indirect) are manifold and unnecessary.

Mr. Kent and Ms. Lee worked in an industrial environment and Mr. Kent was her supervisor. The facts presented at Arbitration were that they had some previous conflict where Ms. Lee had made “shooing” motions to Mr. Kent when he attempted to give her directions on a few occasions. On the day of the latest incident, Ms. Lee required some work direction and Mr. Kent arrived to provide it. Mr. Kent repeated his instructions three times and Ms. Lee became frustrated and said “Adios” and made the “shooing motion” once again. Mr. Kent left but returned shortly thereafter as he had determined not to put up with this behaviour any longer. What followed was a yelling match in the workplace and a complaint of harassment filed by Ms. Lee. When informed of the complaint Mr. Kent complained that Ms. Lee had harassed him.

An internal investigation occurred, Ms. Lee and Mr. Kent were interviewed. Union representatives and management representatives were present. Eight witnesses were identified and interviewed. It was concluded that the situation was not harassment but a workplace incident where both Mr. Kent and Ms. Lee behaved inappropriately. The conclusion advised discipline for both parties. Ms. Lee received a verbal warning and Mr. Kent received a written warning.

At the Arbitration, Ms. Lee testified that Mr. Kent came up to her running, was yelling, and was waving his hands in her face. Mr. Kent later explained that he was French and that French people talk with their hands. Both testified that they were yelling at each other. Mr. Kent said that Ms. Lee started yelling first.

There were other issues present in this case, including that Ms. Lee had been disciplined for previous issues. Ms. Lee also alleged that Mr. Kent had a history of treating her and others poorly and that this incident formed a pattern of behaviour (although she had not reported any of the previous incidents to management or the union).

One of the elements considered by the Arbitrator, was the element of intention, as has been considered in many cases. The Arbitrator once again noted that the test is not “did a person intend” to harass someone but rather “would a reasonable person know, or ought they to have known” the comment was unwelcome.

Similarly, the Arbitrator stated that Harassment is not proven simply because an employee takes offense at something that was said or done. There must be evidence that, from an objective standpoint, the alleged harasser knew or ought to have known that the comment was unwelcome.

Ultimately, the grievances were dismissed and the discipline was upheld.

Some of the questions I have when reading this decision are: 

1. At this point I find myself wondering: If Mr. Kent had an issue with this behaviour and if he resolved to deal with it the next time, why not deal with it before it happened again and when everyone was calm and there was not an immediate issue?

2. How much did this cost the organization and the people directly affected? How much would it have cost to deal with the issue proactively, in a more appropriate way?

3. How will this employment relationship be repaired?