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Dylan Hill
May 16, 2016

Employee Terminated For Workplace Violence – Then Overturned

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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!

 

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Dylan Hill
January 20, 2016

Many Levels of Risk: Conflict and Investigations

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Right now, today, at this very moment, there is an incident happening that will require (or if not require end up) in a formal Harassment Investigation. Some of those will land on my desk. This is a fact. I would prefer to help the leaders out there with the skill of early resolution! Yes, my company does that too! Check out our available workshops.

For those that do end up in an investigation: some will go external. Some of those will make it to my desk and I am not worried about those. They will be done well, guaranteed.

I worry for those that land on desks unfamiliar with the work, and those thinking of interviewing and investigation work as a game, as a movie or TV like confession. I worry for the organizations who incur unnecessary risks and exposure due to a lack of experience or trained resources.  To do our part, Hill Advisory has committed to donating a seat in our upcoming courses to HR Students or Non-profit organizations, who may otherwise not ever have access to this area of specialized training.

I invite you all to attend our Harassment Investigation courses, coming to a city near you in 2016 and beyond. If you don’t learn more than you believed you could and gain a totally new perspective on formal Harassment complaint and if you do not leave with more tools than you previously had and if you don’t have some fun along the way, I’ll offer you a full refund! Hope to see you in 2016.

Dylan Hill
July 18, 2015

Sexual Harassment is Alive and Well (Unfortunately!)

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After years of declining representation in Hill Advisory caseloads, 2014/2015 has seen a spike in high level sexual harassment investigations. We have seen similar in popular media and in our ongoing research in the area. Here is a recent case with some details that are not that different from some we have investigated recently.

Sally and John both worked in a Health care facility as Nurses. The complaint comes from Sally, against both the employer and John in relation to actions John took before and after their consensual extra-marital affair. Sally and John had an affair for over a year, inside and outside of the workplace. At the end, Sally was diagnosed with some mental health concerns, her husband found out about the affair and some of the details. Sally’s husband contacted the employer with a complaint and a few days later called back and alleged that John had sexually assaulted his wife in the workplace. When Sally was contacted by the employer, she said that she did not wish to file a complaint pursuant to their respectful workplace policy. A few days later, the employer was provided with a statement of complaint and Sally filed a Human Rights complaint. The employer conducted an internal investigation.

The tribunal dealt with a number of questions, including outlining some of the facts, deciding on a motion to anonymize the parties and an application by the employer to dismiss the claim. In the consideration of the above, the tribunal attempted to parse the actions that happened before, during and after the consensual relationship to determine the merit of the complaint.

Some of the incidents before the relationship were:

1. John walked up behind Sally and put his hand in her back pocket at work. She asked him to stop and he did.

2. John pulled Sally onto his lap when she was walking by him. He did not let her up right away but eventually did so.

3. John sent Sally numerous chat messages, text messages, Facebook messages which were “flirty” at first and progressed to outright propositions.

After approximately three years of behaviour like this which occurred with varying frequency and intensity, (and which Sally did not report), the relationship turned more consensual. Evidence of the consent was provided by both parties through chat logs etc. Sally told John that she had sexual dreams about him, and that she had suggested to her husband that John join in their sexual activities.

However, throughout their “consensual relationship” Sally alleged that there were several incidents when John subjected her to unwelcome sexual behaviour like exposing himself to her in a locked office and “unwanted sexual intercourse” in an office at work. Their relationship continued and she invited him to her house in the two weeks that her husband was away, where they engaged in sexual intercourse repeatedly.

Sally went on a holiday with her family that summer and when she returned, she told John that they had to stop seeing each other. Sally said that John would not stop and continued to aggressively pursue her. They met up one more time and had sexual intercourse. Shortly thereafter, Sally confessed the relationship to her husband and he contacted the employer to make them aware of his concerns. The employer had no previous knowledge of the relationship or the allegations of inappropriate behaviour prior to the commencement of the relationship.

Shortly after telling the employer that she dd not wish to file a complaint pursuant to their policies, she filed a complaint with the Human Rights Commission and forwarded a statement to the employer. They decided to conduct an internal investigation and at the end made an application to dismiss the claim.

The Tribunal considered the matter of timeliness (must be filed within six months of the alleged contravention or represent a pattern with the last instance within that timeframe). The Tribunal considered their ability to accept out of time evidence as well. The evidence presented was from 2010-2013 so was clearly out of time. Sally made arguments that the employer did not handle the situation properly, that they should have known and that her mental diagnosis contributed to the time delay. The Tribunal concluded that they could find no timely acts of the same character as others, so found that Sally’s allegations did not describe a contravention of the Code. The Tribunal further considered other factors Sally presented in her argument that the Tribunal should make an exception regarding the timeliness of the complaint, but ultimately ruled they would not exercise their discretion.

All of the cases we summarize include many factors and interesting points to learn from. What strikes me about this case is the difficulty in dealing with a scenario of a mutual relationship that ends. It seems many employers would prefer these types of complaints to stay outside of their policies and responsibility when things go wrong, but it seems to be an easy bar to cross to link these cases to the workplace, therefore placing it firmly in the employer’s lap. 

Of course, the most striking aspect of this case is the level of impropriety existent in our workplaces still. No matter where the facts eventually settle, are we really asked to accept behaviour like this anywhere, much less our workplaces? The area of sexual harassment of this level was rampant when Ms Cam Hill started our company 25 years ago, yet here I am conducting investigations into this re-emerged trend.