Author Dylan Hill

Author Dylan Hill

Dylan Hill
September 1, 2010

'A Downward Spiral'

We can’t make it up!

Mr Rogers was a Lawyer by training and the Director of Labour Relations for a City. Ms Ray was the Chief of Staff for the City. Mr Rogers and Ms Ray had a romantic relationship that lasted 2 years. Mr Rogers’ inability to accept the end of the relationship began his downward spiral.

After two years, Ms Ray decided to end her relationship with Mr Rogers because she could not see a future. Mr Rogers refused to accept the fact that the relationship was over and the reasons given for the breakup.

A while later, Mr Rogers and Ms Ray went to a resort for a preplanned vacation together. Ms Ray reiterated that she wished to end the relationship and eventually Mr Rogers seemed to agree.

A few days later, Mr Rogers called Ms Ray at 4:00 a.m. very emotional and inconsolable. He told her that he could not envision a life without her. She repeated that she did not love him and clearly communicated to him that the romantic relationship was over. She refused his request to reconsider her decision. She told him that they could be friends.

Shortly after, Mr Rogers visited Ms Ray’s parents’ home, uninvited. He discussed their relationship with Ms Ray’s mother and asked her to intervene. Ms Ray’s mother refused, say- ing she had no intention of interfering in her grown child’s life. Mr Rogers’ communication at the time showed clearly that he understood the relationship was over.

Mr Rogers started going to Ms Ray’s home uninvited. He knocked on her front door and when there was no answer, went through the alley and to her back door to knock.

Mr Rogers began parking his car next to Ms Ray’s in the parking lot at work, which he had never done before. He also started standing on a path outside Ms Ray’s office window and looked in at her. When Ms Ray first saw him, she waved nervously. She eventually started hiding in the corner by her computer. She saw him outside between five and 10 times.

The Spiral

Ms Ray spoke to Mr Rogers in the late summer and stated again that their romantic relationship was over. She said his behavior was unacceptable and that it was unsettling. Ms Ray thought that by the end of the meeting Mr Rogers had accepted the message and that they would not see each other even as friends.

Mr Rogers repeatedly asked Ms Ray to attend events with him and to travel with him throughout the Summer and Fall.

The wording in his emails clearly showed that he knew she might not welcome the repeated offers. Mr Rogers deliberately refused to accept that the relationship was terminated and to respect Ms Ray’s expressed wishes to be left alone.

Ms Ray’s contract was up for renewal in the Fall and Mr Rogers decided to personally handle the work even though he was in a clear conflict of interest.

Mr Rogers made an appointment with the Mayor and discussed the termination of his relationship with Ms Ray. He told the Mayor he had strong feelings for Ms Ray, was still in love, and that he could provide a good standard of living for Ms Ray. They discussed Ms Ray’s contract. Mr Rogers told the Mayor Ms Ray did not want to see him anymore and that he thought it might be due to work related pressures.

Word of the meeting got back to Ms Ray who was upset that her personal life would be discussed in this manner.

Ms Ray met with Mr Rogers in a pub- lic setting because she was growing more concerned with his behavior. She was very angry because he had spoken to her parents, and the Mayor about their relationship.

Ms Ray told Mr Rogers she was alarmed at his behavior, including that he was standing beside her office window and was parking his car near hers. Mr Rogers acknowledged that he was moving his car to serve as a reminder that he was ‘always there.’

Mr Rogers showed Ms Ray one of the cards she had given him while they were in the relationship. Ms Ray snapped it out of his hand and tore it up in little pieces saying ‘you need a visual.’

Mr Rogers said that he was looking for property and that he hoped she might think about moving in. He said that he was prepared to marry her as he had ‘put in a lot of time.’ Ms Ray said she had moved on with her life and that he was going to have to move on with his.

Mr Rogers continued his uninvited visits to Ms Ray’s house, the parking, the watching, the calls to her family, and the email invitations.

Mr Rogers told Ms Ray that he was in counseling and suggested a meeting with Ms Ray in order to gain closure. She agreed to meet in her office on those grounds. Mr Rogers arrived and told Ms Ray that there was only one ‘soul mate’ for every person and she was his. Ms Ray stopped him and asked him to leave. He apologized and asked to hold her hand, which she refused. Mr Rogers told Ms Ray he was prepared to marry her. She re- fused. He started to recite a poem to her. She ripped up the poem. She told him she was seeing Mr Zastre (a coworker).

Mr Rogers became abusive, called her a thief, a liar and a coward. She asked him to leave and he did.

Mr Rogers asked to be excluded from any meetings that involved Ms Ray. His boss said that was not possible in all circumstances and told Mr Rogers the expectation was that he would be professional in his dealings with Ms Ray.

Mr Rogers got in touch Mr Zastre’s ex-wife who was extremely upset and was planning to go to the media with information about Mr Zastre and Ms Ray. Mr Rogers provided her some more information, including a derogatory comment Ms Ray had once made regarding the Mayor.

Bottom

Mr Rogers asked to meet with the Mayor when the media situation became known. He advised that the Mayor ‘get ahead’ of the upcoming article and terminate Ms Ray. The Mayor had no intention of doing such a thing.

Finally, Mr Rogers was driving down the street where Ms Ray and Mr Zastre lived and saw Mr Zastre walking. He followed behind closely while revving his engine. Mr Zastre tried to cross the street and Mr Rogers accelerated towards him at a high rate of speed. He had to jump back to avoid injury.

Mr Rogers was criminally charged with a number of offenses, which were ultimately dropped in exchange for an apology and a peace bond. Mr Rogers later denied that he meant any of the statements made at the proceedings. Further, he said that he had not meant the apology. He was suspended pending an investigation. The investigation concluded that there had been a violation of the workplace harassment policies, an abuse of authority, a betrayal of trust, a demon- strated conflict of interest, and clear evidence of a retaliation on Ms Ray.

Mr Rogers was terminated with cause. He filed a case of wrongful dismissal.

After a thorough review of all the evidence, the Court found it was appropriate for the City to terminate Mr Rogers’s employment for cause and his claim was dismissed.

Dylan Hill
June 1, 2010

'Facebook Message = Firing'

How romantic interest, Facebook and recruitment collide.

Mr Jobs was discharged in September 2009 for engaging in instances of personal harassment, misrepresentation and intimations of unauthorized and improper interference with the Employer’s system with respect to a summer student of an affiliated Employer.

Mr Jobs was the Web Administrator for five years. His duties and responsibilities included designing, building, and maintaining the Employer’s Internet and Intranet sites. He also had some responsibilities in Corporate communications and Media relations.

Ms Lea was a 24 year old summer student working for an affiliated Company. She was in a Technical Program at a local College and hoped to graduate in a year and seek employment with the Employer. As part of her summer duties,Ms Lea was required to facilitate in the planning for the annual golf tournament and she sought Mr Jobs’ assistance in placing registration information on the Employer’s Intranet.

Mr Jobs agreed to help and they spoke on the phone. During this call, Mr Jobs mentioned his hometown and Ms Lea just happened to be from a town close by. They spent sometime talking about the area and their plans for the upcoming long weekend. Later that night Ms Lea ‘friend requested’ Mr Jobs on Facebook and he accepted.

The two spoke by telephone a number of times over the next few weeks about the tournament. They also continued to discuss personal matters. During one of the calls, Mr Jobs asked for Ms Lea’s home phone number and she gave it to him. They talked occasionally over the phone at night and chatted on Facebook, but as friends and not in a romantic way.

Towards the end of August the two of them discussed meeting in person for the first time. They agreed to go hiking and out to dinner in celebration of Ms Lea’s birthday two weeks later. By that time Ms Lea had finished her summer job and returned to school, which involved moving. She gave Mr Jobs her new phone number.

Girlfriend Comment

A couple of days before their scheduled plans, they spoke on the phone to finalized them.Mr Jobs told Ms Lea that he did not want to introduce her to his friend Mr Ballmer because he always “hit on his girlfriends.”

Ms Lea found the comment disturbing and became concerned about Mr Jobs’ intentions in meeting her. She had not yet met him in person and he was now referring to her as his ‘girlfriend.’ She had never considered him to be more than a platonic friend and was not interested in any relationship beyond that.

Stood Up

Ms Lea said nothing of her concerns during the phone call but decided not to meet Mr Jobs as planned. She sent Mr Jobs a Facebook message advising him that he may have gotten the wrong impression and that she only meant for the two of them to be friends.

Mr Jobs did not check his Facebook account for a couple of days so did not receive Ms Lea’s message. Unaware that Ms Lea had concerns or that she had decided not to meet as planned, he phoned her on his way home from work. She did not answer his call so he left a message. He did not hear back so he proceeded to call a couple of more times over the next few hours. Finally, he decided that he had been ‘stood up’ so he stopped calling. He was angry and hurt.

Reaction

A few days after the planned meeting, he checked his Facebook page and discovered then the message Ms Lea had left for him days earlier. He replied: “What do I care about someone like that? Obviously your MO is to lead on as many guys here as possible to try and secure yourself a job. Good luck with that…gee maybe you should have thought about how much power and influence I have over the HR dept and all of their computer systems before you treated me like shit and jeopardized all of your career aspirations. Try to figure THAT out yourself. You’ll have plenty of time to reflect on it when you’re working at Tim Horton’s for the rest of your life. TTYN [Talk To You Never]”

After sending the message he disconnected the Facebook connection so they could no longer exchange messages.

Fears

Mr Jobs did not have the ability to undermine or ruin Ms Lea’s job prospects but she certainly perceived the threat as real. She perceived Mr Jobs to be in a position of power as the Web Administrator. She realized that to apply for work with the Employer would require an on-line application and she feared that Mr Jobs could filter her application to ensure she did not get a job.

Ms Lea was frightened and concerned so brought the situation to the attention of the Employer.

Investigation

Mr Jobs was advised by a manager that because of his interactions with Ms Lea, he was to leave the premises and he did so. He was not told any details of the allegations. Uncertain about why he had been removed from work and realizing that he was in some trouble, Mr Jobs phoned Ms Lea that night, both to find out what was going on and to apologize if necessary. Ms Lea said that she should not be talking to him and hung up quickly.

Later that week Mr Jobs was called to a meeting with management. He asked if he would have an opportunity to apologize to Ms Lea. He was told to have no contact with her and was given a letter terminating his employment.

Mr Jobs filed a grievance and an Arbitration ensued.

Arguments

The Employer argued that the termination was justified. They noted Mr Jobs had a position of importance and responsibility including duties involving meeting with members of the public and media. They argued Mr Jobs knew Ms Lea was a young student who was seeking a career with the Employer and she would have understood him to have a senior position of authority and responsibility. They argued that he sent her a message designed to threaten her over job prospects, intended to cause her pain and anguish and succeeded in doing so. The Employer submitted that Mr Jobs’ behaviour was disgraceful and reflected poorly on the organization.

The Union agreed the improper conduct was significant. However, they argued that there was no reason given as to why a lesser penalty was not given. They argued Mr Jobs did not have the intent or the ability to carry out his threat. They submitted that Mr Jobs was credible, candid, and remorseful, fully acknowledging his misconduct and taking full responsibility for it and his apology was sincere and complete when he was allowed to give it.He had no prior disciplinary record and the Union maintained that discharge was too severe a penalty and suspension ought to be substituted.

Decision

Should Mr Jobs be reinstated and a suspension be substituted? What was the decision? Follow us on Twitter http://twitter.com/HillAdvisory to find out!

Dylan Hill
March 1, 2010

Environment is No Defense

How swearing in the workplace is unacceptable anywhere

The Employer operates Government controlled liquor distribution. Shane is a long service employee of the Employer and had worked for them for 30 years. Londa is the Store Manager and Shane has had issues with her from the start. Caroline was hired for a short term over the holiday season.

The case concerns the dismissal of Shane for behaviour contrary to the Standards of Conduct. More specifically, it is alleged that Shane engaged in conversations with co-workers during which he made defamatory and demeaning remarks against the store manager. Shane had engaged in similar behaviour in the past and had been disciplined for it. On this occasion, Shane was fired and he filed a grievance.

The events occurred in late December. The most significant incident is alleged to have occurred on December 24th. On that day, Caroline was on till and became involved in a dis- pute with a customer. Londa came over to help and asked Caroline to step away. On her way to the back of the store, Caroline stopped to ‘vent’ with Shane. During the conversation Caroline said Shane made remarks directed at Londa as well as another employee, Edina. In particular, he called Edina a“f***ing bulldog”and Londa a“f***ing b**ch”. Customers were in the area when the comments were made.

Caroline talked to Londa about the conversation and shared the names Shane had called her. Caroline took notes of their conversation and asked Caroline to forward her an email with the information. Shane had a history of calling Londa the same name and worse names in the store.

Shane denied making any comments like the ones reported. He did admit he used the ‘F’ word and was sure he had used the terms ‘incompetent’, ‘b**ch’ and had said Londa was ‘in over her head.’ He felt Londa was a ‘b**ch’ because of the way she ‘baited’ and ‘bullied’ him.

Employer Position

The Employer argued that Shane’s conducting challenging Londa’s managerial decisions, belittling her by use of various derogatory names was tantamount to harassment. They asserted that Shane was unable or unwilling to change his behaviour and had no insight, remorse or apology. They argued the termination was justified and required to protect other employees from a poisoned work environment.

With respect to the specific allegation of Shane’s comments on December 24th, the Employer argued that evidence showed Shane had used the terms in the workplace, and that he generally used profanity without hesitation. They also referred to his admission he called Londa other names.

The Employer stated Shane’s disciplinary history supported a conclusion that discharge was an appropriate sanction. Shane had received a one-day suspension in 1993, followed by increasingly severe discipline, including a two-day suspension in July 2005 and a three-day suspension in November 2005. The discipline was for either inappropriate actions towards co-workers or management.

The Employer argued Shane’s conduct was not a momentary aberration but a continuation of his previous conduct that had attracted discipline in the past, despite clear direction from the Employer that such conduct was not acceptable.

Further, Shane’s contempt carried through to his testimony at the hearing. Rather than accept responsibility for his actions Shane said he believed that he was entitled to continue with his behaviour if he feels he has been demeaned in the workplace.

Union Position

The Union acknowledged that Shane’s conduct did give rise to just cause for some form of discipline but argued that discharge was an excessive penalty.

They pointed to the letter of termination, and the Employer’s investigation, focussed on a specific incident and no allegation against Shane regarding comments made about a co-worker.

The Union disagreed with the Employer’s characterization of Shane’s comments as disrespectful and inappropriate, since at that specific location many employees routinely used such language. They argued there was a ‘culture of swearing’ at the workplace.

The Union argued the 1993 discipline was stale,given that Shane worked for another twelve years without discipline. They also argued that the other discipline involved situations that did not include abusive conduct, but rather a dispute with another manager.

They argued that although Londa stated Shane made offensive comments in front of co-workers and customers, there was no evidence of customer complaints and no reference in the termination letter to comments having been made in front of customers.

The Union contended that Caroline – a junior, seasonal employee lied about the events.They referred to a difference in where she said the conversation occurred and inconsistencies in Londa’s notes and Caroline’s email. They also argued that although Caroline said she was shocked by Shane’s comments and wanted to get away from him, she accepted a ride home from him even though she had other options

The Union argued that the employment relationship could be restored and that Shane should be reinstated.

Decision

The arbitrator looked at the conflicting evidence from Caroline and Shane.He felt that Shane’s version of events was more credible and he based that decision on the conflict between Caroline stating she was uncomfortable around Shane, yet asking him for a ride home when there were other options that she had used before. The arbitrator also referred to the inconsistency with Londa’s notes and Caroline’s email.

The arbitrator ruled that he was unable to accept Caroline’s evidence with respect to the events of December 24th. Specifically that the evidence was not compelling to find Shane had made the com- ments in the store and in front of customers.

He turned to the other aspects of Shane’s conduct, some of which were undisputed, that justified a disciplinary response. Shane had admitted to calling Londa a ‘b**ch’ and making derogatory remarks about her managerial skills. These comments were made in the workplace.

The arbitrator was aware that other employees made similar comments, and addressed the Union’s contention of a ‘culture of swearing.’ It was noted that many of the employee’s did use profane language. However, the arbitrator ruled that there was no doubt the Employer considered that type of behaviour to be inappropriate. He ruled that Shane’s comments would certainly be considered offensive had they been said directly to Londa and that they had clear and unequivocal meaning. He noted Shane’s comments were cutting, crude and inappropriate.

The arbitrator ruled the employment relationship was not irreparable and reinstated Shane with a 30 day suspension and two conditions.