Workplace conflict: Giving peace a chance

Most employers and HR professionals likely want to have a workplace full of peace and harmony where everyone is focused on getting the job done.

However, the reality is that people with different personalities can clash, and if cooler heads can’t prevail in the workplace, it can raise a host of legal liabilities for the employer.

“Conflict between two employees is a general workplace concern and it shouldn't be perceived as an issue of those employees only – it’s really an issue for the employer,” says Natalia Tzemis, an employment and labour lawyer at Harris and Company in Vancouver.

“Where there's conflict between two or more employees in the workplace, the principal liability concerns are around the health, safety and wellbeing of individuals in the workplace, and that's because the common law and various statutes – such as the Workers Compensation Act or Human Rights Code in BC, for example - impose requirements on employers to provide and promote a workplace free of conflict, harassment, violence, discrimination, and other forms of inappropriate conduct.”

Tzemis notes that, as with many aspects of the employment relationship, employers should have policies and procedures in place that address employee conflict and how it should be dealt with.

“If an employer doesn’t have a policy or procedures to deal with these issues, then this is the time to get those in place for future conflicts,” says Tzemis. “Employers have an obligation to implement policies and procedures for dealing with workplace bullying and harassment under health and safety legislation.”

Vicarious liability from workplace conflict

Anything that happens in the workplace is under the employer’s domain and the employer can’t absolve itself from an overarching responsibility to ensure that employees are conducting themselves appropriately in the workplace, says Tzemis.

“There’s an important concept of vicarious liability - the employer can be responsible for all sorts of harm resulting from employees’ acts done in the course of employment,” she says. “That doesn’t require that the acts are specifically authorized by the employer - often it’s actually opposite the employer’s desires – but they still attract liability for the employer.”

That responsibility means that the employer has to take action if it looks like a conflict isn’t going to be resolved or could escalate, according to Tzemis.

“Not all conflict can be resolved on its own among employees, so it’s critical that the employer dedicate time and resources to resolving workplace conflict,” she says. “If the employer doesn’t step in, the chance that the conflict escalates increases and, with that, liability exposure increases.”

Getting involved in conflict resolution

Identifying someone who can deal with a particular conflict is a good first step, ideally someone who has a particular skill set in conflict resolution, says Tzemis.

“There are all sorts of considerations that may change who should step in to deal with conflict,” she says. “For example, the employer may have a usual practice of having the employee's direct manager deal with conflict, but there could be circumstances where the employer decides that another manager or HR steps in because they’re better suited to talk to the employees.”

Informal mediation is one way to deal with workplace conflict, as it can change the tone between the employees and get them working towards a shared goal of ending the conflict. However, if that doesn’t work, the employer will likely have to launch a formal investigation process, says Tzemis, who notes that the investigation could be carried out internally if the employer has the resources, but using an external, third-party investigator could better ensure impartiality if it’s a sensitive situation.

“The employer should always strive to have the investigation conducted in a timely manner to minimize its exposure to liability - if the employer doesn't take action promptly, that could leave the impression that the employer isn’t living up to its obligations and ensuring a healthy and safe workplace,” says Tzemis. “This could result in claims or complaints against the employer that could have been avoided if the employer had acted quicker.”

In addition to being timely, the investigation process should be thorough and fair, and involve the careful review of any relevant documents, interviewing witnesses, and conducting follow-ups to get the full picture. This includes always allowing employees a fair opportunity to respond to any allegation against them, adds Tzemis, who also points out that maintaining confidentiality of the process is critical.

Liability tied to impact on victim

While conflict between individuals can take different forms, it’s really about the impact on the victim, according to Tzemis.

“When we talk about verbal conflicts, we think about swearing and assault, condescending language, that sort of thing, while physical conflicts can be things such as hitting, pushing, or other unwanted touching - but between the two categories, there's really no hierarchy of conflict per se,” she says. “A racial slur could be just as distressful as an unwanted hug or vice versa, and those types of conflicts can include aspects of discrimination, which may trigger a human rights complaint and attract workplace safety issues, or otherwise give rise to damages in civil proceedings.

“And the impact of employees ganging up on others can be concerning, as there can be the psychological impact of isolation, anxiety, trauma, depression - just to name a few for employees who fall victim to that behavior,” adds Tzemis. “Of course, conflict between two employees can still lead to those things, but I would say that conflict is more likely to get out of control where there is ganging up, because you're more likely to get gossip and rumors which have compounding effects in the workplace.”

However, Tzemis cautions that not all workplace conflict causes health or safety concerns, particularly if it’s related to legitimate performance management or other managerial duties.

“It’s fine for someone to be upset about their performance review and that causes some tension, but that if that performance review was conducted appropriately by their manager and it was free of bullying, harassment, discrimination and the like, then that's not a liability issue for the employer,” says Tzemis.

Tips for employers for workplace conflict

Addressing and resolving conflicts between employees in the workplace can be a tricky process, so Tzemis suggests the following tips for employers and their HR departments:

• Refer to your policies and, if you don't have existing harassment or respectful workplace policies, get them in place.
• The employer is a neutral party in dealing with workplace conflict.
• Be supportive of all employees and keep in mind the bigger picture of the organization. It's best to figure out ways to move forward together.
• The approach in dealing with conflict should be tailored to what is most appropriate to the situation.
• Try collaborative approaches to resolving workplace disputes and listen to both sides to get to the root of the problem.
• Sometimes, formal investigations or other proceedings are necessary, so don't be afraid of them and do what's in your power as an organization to provide and promote a respectful workplace.