Investigations: The proper path to discipline and dismissal
Workplace harassment and violence require employers to jump into action, but not to conclusions
Oct 30, 2017
An adjudicator determined the investigation was “a sham” and the band didn’t make any real effort to get to the bottom of what happened. Google Street View
By Jeffrey R. Smith
Employers are obligated to do what they can to keep the workplace safe and hospitable for employees. And that includes proactive methods such as training and posted policies on subjects such as safety and harassment. But employers also have to be careful they’re not overzealous in their efforts, at the risk of causing more problems than they’re addressing.
If an employer hears of instances of workplace harassment or violence, it obviously needs to do something about it. Whether there actually was harassment or violence, a misunderstanding, or someone just making up the story, something needs to be done. If the story is true, the employer needs to take action to protect the victim and discipline the offender, or face both legal liability and the risk of a poisoned workplace environment.
If the story isn’t true or it’s a misunderstanding, it still needs to be resolved or the same things could result but for different reasons. Either way, the employer’s course of action is the same: launch a thorough investigation.
Take a recent situation at the office of a Manitoba First Nations band. One day, a child was in the band office and had a heavy object fall on him. That led to a bit of chaos in the office, as people scrambled to help the child. After the dust settled, word got to the band manager that there had been a pushing incident between two employees. One of the employees involved eventually said that as he went to help the child, he tried to get through a doorway where a second employee was standing. He said he tried to get past the second employee when the latter pushed him with both hands towards the wall. The employee said he initially didn’t realize what had happened.
The band chief and council kept asking the employee about the incident, so he wrote an incident report describing the incident. The band manager had heard of other difficulties with the second employee, who had been with the band for 20 years and had been chafing under a new management structure under which she reported to a new supervisor. The employee had also indicated she didn’t like following the band manager’s instructions, as he was also relatively new to the office.
The band manager decided to terminate the employee for what he termed workplace assault. However, an adjudicator found it was an unjust dismissal, because the employer didn’t really conduct much of an investigation. It relied on the report of the so-called victim, who hadn’t even intended to report the incident until he was prompted. In addition, the band manager characterized the incident as assault, without any notable corroboration of what really happened. Finally – and probably most egregiously – no one in management bothered to talk to the accused employee about what happened.
The adjudicator determined that the investigation was “a sham” and the band didn’t make any real effort to get to the bottom of what happened. Since the employee had 20 years of service, the adjudicator awarded her two weeks per year of service, plus $10,000 in punitive damages for bad-faith on the employer’s part causing the employee unnecessary embarrassment and suffering: Thomas and Shamattawa First Nation, Re, 2017 CarswellNat 5067 (Can. Labour Code Adj.).
Management in the above case clearly had some issues with the employee because of her attitude at times and perhaps some personality clashing. However, the employee was a long-term worker and hadn’t been warned of any issues prior, so the bar was high for dismissing her.
Perhaps the manager may have seen this as an opportunity to get rid of this employee, which would explain his eagerness to fire her in the hope that the incident was enough reason to do so. However, he had no real proof of what happened and assumed the worst without finding out more. And it’s rare that a termination will hold up under such circumstances.
In any workplace incident where there’s possible harassment or violence, it’s important for an employer to act. But it’s also important to know as much of the facts as possible so the situation is addressed properly and not used as an excuse to cut ties with an employee.
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Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.