Rehiring fired employee sticky situation for HR

Return of controversial Hydro One worker highlights challenges for employers, employees
By Liz Bernier
|Canadian HR Reporter|Last Updated: 12/10/2015

It’s arguably one of the more awkward situations HR has to deal with: An employee misbehaves, is fired and then — surprise — he’s reinstated just a few months later. 

That was the case at Hydro One recently after the organization was told by an arbitrator to rehire Shawn Simoes, the employee who was terminated after endorsing rude comments made by another man on air to a CityNews reporter at a Toronto sports game in the spring.

Simoes, who reportedly earned $106,510 per year at his job, sent an apology letter to the reporter, made a donation to the White Ribbon campaign and attended sensitivity training, according to his union, the Society of Energy Professionals.

The story is a polarizing one, according to Mike Salveta, president of managed solutions at Pivotal HR Solutions in Toronto. 

“Had it been a story about an individual who drank too much and said something inappropriate, it probably wouldn’t have had legs. But as soon as the employer was brought into it — particularly Hydro One — you knew that this was going to be a very difficult and polarizing story,” he said.  

“It was almost a no-win situation. I think the organization had no choice.”

It certainly wouldn’t have looked good if Hydro One had not reacted to Simoes’ behaviour, said Salveta. At the same time, there were obviously some who felt termination was a punishment disproportionate to the crime.

Awkward situation 

In the social media age, we’re likely to keep seeing companies react quickly to public scandals involving an employee — even if it means having to backtrack later, whether through arbitration or a wrongful dismissal suit, said Salveta. 

“Ten, 15 years ago, employers really didn’t have to deal with social media… but, on the other hand, they’re desperately trying to attract and retain excellent employees, and part of that is having some sort of vision and values, and standards that you stand for as an organization.” 

When a misbehaving employee is rehired, there’s no argument it’s an awkward situation, said Carina Vassilieva, senior principal at Hay Group in Toronto.  

“Generally speaking, a reinstatement of a terminated employee in a case of misconduct makes the employer-employee relationship difficult. So it all depends on a variety of factors,” she said. 

“One of them would be whether the employee deserves a second chance because they realized that they misbehaved or that their conduct wasn’t appropriate (and) if they sincerely realize it and take steps around correcting the behaviour and not repeating the misconduct again.”

The decisions arbitrators make usually turn on the investigation of the case and the belief of whether this misconduct has the possibility of repeating itself or not, she said. 

But even if it’s not a hugely high-profile situation, there are still a lot of relational ripples among employees when an event like this occurs, he said. 

“Hydro One just happens to be a public company. (But) in a privately run company, the issues are the same. In both cases, to me, the main issue that you have to manage is the polarization of employees’ perspective and management’s perspectives,” said Salveta. 

In most organizations, employers have embraced the fact there have to be anti-harassment policies, non-violence policies and procedures and standards, and corrective discipline and action, he said. 

“You have standards as an organization and you have values as an organization, and if one of your employees is acting outside of those standards, you have to stand up and enforce them.”

Which is one reason why it’s likely employers will continue to be arguably a bit heavy-handed with discipline. 

 “It’s much more serious I think today — organizations take almost a zero-tolerance approach toward many of these activities,” said Salveta. 

“When it happens, either inside or outside the workplace, on Facebook or on Twitter, you’re going to see much more progressive discipline and perhaps more terminations as a result.”

In cases like this, there will be polarization and resentment from some employees, and agreement from others, he said. 

“The number one issue for me is you’ve just taken a workforce and divided it.”

Re-integrating problem employees

If it’s decided an employee should be reinstated, how can the employer balance giving her a second chance while also protecting its own interests? 

“What HR can do, management can do is spending time with the employee, having discussions about the issue, making sure they sincerely realize they performed misconduct, making clear what it means, and making it clear… how this misconduct can be avoided in the future. And keeping an eye on them from both perspectives,” said Vassilieva. 

“When it comes to reinstatement… form a logical human perspective, they’re tough situations, and if it can be avoided, that’s better. Reinstatement is a difficult step.” 

There is just no way to completely avoid the fact that workers are human and they will have opinions on the situation, said Salveta. 

“If the employee comes back, no matter what you try to do, no matter how you train your managers and employees, there’s going to be personal biases that you’re going to have to manage. 

“There’s going to be resentments, there’s going to be perhaps individuals that will feel that the organization is completely rudderless, valueless or, on the other hand, the more non-supportive of the employees are going to use this as a way of saying, ‘See? Our organization is unfair.’”

Avoiding harassment

There’s no perfect way for employers to reintegrate an employee back into the workplace, said Cissy Pau, principal consultant at Clear HR Consulting in Vancouver. 

“The employer has to be really careful how they deal with the communications piece, the public relations piece, they have to manage with the union, what happens with the employees at the workplace who’ve seen all this and now have formed their perceptions, and then for the employee (himself) — how do you protect his confidentiality? 

“How do you make it easier for him so that he’s not being bullied or harassed?”

It’s about ensuring there is a safe and harassment-free workplace for all parties — including the rehired employee, she said. 

“It kind of goes all ways. It’s not just the people at the workplace being comfortable with him — you also have to make sure that he’s not being harassed as well. If these people have negative feelings about him, are they going to ostracize him, are they going to make it difficult for him?” said Pau.

“As an employer, enforcing the company’s policies on harassment and bullying and all that is important.”

Having an action plan is also key, she said.  

“How do we make sure the employee gets integrated or re-integrated back into the workforce so that it’s as positive an outcome as possible? And that involves dealing with the employee, talking to the union and making sure they’re onside; it’s some communication with the rest of the employees, it’s some PR.”

It’s important to make every worker feel safe in the workplace, said Vassilieva. 

 “In Ontario, for example, there is workplace harassment (legislation) and employers have to comply with that. So, in my opinion, it’s all about having a policy in place and making communication about it very clear. 

“So employers have to be very transparent and communicate very clearly what the policy is, what are the mechanisms around the policy, how employees can report to relevant parties if they feel threatened or if they feel unsafe for whatever reason, and what remedies organizations have in place in order to address those questions and concerns for people,” she said. 

“Employers have to be very clear in terms of what protection mechanisms they offer.”

That’s particularly important if the employee in question had issues such as addiction or anger issues, said Pau. 

“It can’t be swept under the carpet, that’s for sure. I think those issues need to be addressed at the outset of the rehiring. I would hope that that would have been taken into consideration in the arbitration as well,” she said. 

“If there were those kinds of issues and rehiring was required, then (it’s about) certainly setting expectations with the employee of what’s expected of their performance, giving them appropriate feedback… do they need counselling? Does the person need additional training or the employee assistance program?

“If it’s purely a performance-related issue, I think that has to be set out upfront.”

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