‘His misconduct poisoned the workplace’

“If you are finding these kinds of problems, you want to take action, you don't want to allow it to fester. Because that can really do damage to your culture, your morale and just bleeds throughout the entire workplace.”

So says Paul Willetts, partner at Vey Willetts in Ottawa, in discussing the challenges and implications of a poisoned work environment.

The issue came up yet again in a recent Ontario arbitration decision that provides insights for HR – along with lessons on how to try and prevent this costly predicament, and how to respond when it arises.

Breaches of code of conduct, harassment and intimidation

The case involved a chief steward who performed full-time union duties, from November 2017 until his dismissal in July 2021, at Gate Gourmet Canada which has more than 1,000 employees and provides in-flight meals and products to airlines.

The individual in question was alleged to have “confronted… angrily” his manager, to have yelled and insulted him. He also breached the company’s code of conduct by asking for free standby passes from Air Canada.

During union negotiations, the worker also falsely reported to roughly 240 members that a final deal had been achieved.

He also “engaged in a pattern of harassment and intimidation in which he targeted female colleagues,” such as yelling and speaking in an aggressive manner, verbal attacks, name-calling and unwanted touching.

During tense union negotiations, the chief steward was accused of being “frequently discourteous and disrespectful” along with “hostile and offensive,” but his behaviour was tolerated because of his position and to “keep the peace.”

In April 2021, Gate Gourmet issued a warning letter to the individual. And after three major incidents, the company issued a final warning letter, including a last chance provision. The company said it “collapsed” progressive discipline for these three incidents rather than addressing each one separately.

After a formal letter of complaint of harassment in June 2021, the chief steward was put on administrative leave, and an investigation was carried out.

On July 20, 2021, he was terminated for multiple violations of the code of conduct: “The company asserted that the acts of misconduct were serious and warranted severe discipline.”

However, if no just cause was found, the company said that reinstatement was not viable in the circumstances and urged a calculation of damages instead.

The union, however, said some of the incidents were beyond the scope of the company’s policies and were instead internal union matters. They said the chief steward was often “advocating on behalf of his membership during an extraordinarily challenging period” and leeway in imposing discipline must be provided.

‘Pattern of harassment,’ ‘insulting language’

In the end, arbitrator Elaine Newman found that Walia “stepped over the line” and “pursued an angry confrontation” with his manager that caused him to physically shake: “This is workplace violence within the meaning of the company’s policy.”

She also found a “pattern of harassment” against female coworkers along with “insulting language” during gender-based personal attacks: “Their entire workplace was poisoned as a result.”

While the arbitrator found that discipline was appropriate for two of the incidents, the company’s decision to “collapse” the process “defeats the object of the exercise – incrementally increasing discipline while incentivizing opportunity for reflection and possibly, altering the behaviour,” said Newman.

“It is widely accepted that a factual finding of workplace harassment, even that which reflects a pattern of harassment that creates a poisoned workplace and affects a number of co-workers, will not automatically justify termination.”

As a result, the arbitrator did not find just cause to terminate.

“There was a complete lack of application of progressive discipline either at the stage of the Warning Letter, or after the internal investigation was completed,” she said. “The company failed to impose discipline in a proportionate and reasoned manner. In these circumstances, I cannot exercise my discretion to uphold the discharge.”

Nevertheless, a return to the workplace “would enable further harassment and victimization of others,” said Newman, so reinstatement was not allowed.

What elevates bad behaviour to a toxic environment?

When it comes to instances of bullying or harassment rising to a poisoned or toxic work environment, there is no legal test but there are several factors to consider – on a case-by-case basis.

“Generally, you're looking for a course of vexatious conduct,” says Willetts. “What the arbitrator talks about in this case is a pattern of harassment, so a pattern of this ongoing, vexatious conduct, which in this case was marked by things such as personal attacks on colleagues, disrespectful and aggressive remarks, name-calling, making unfounded allegations.”

In addition, the behaviour impacted several individuals in the workplace, he says.

“There were a number of people that came forward and said they experienced a similar type of interaction with the griever, in this case, so I think for a poisoned workplace, you're looking for that type of sustained, ongoing pattern of behaviour.”

It could just involve one or two incidents of bullying or harassment, and not necessarily be a trend, says Christopher Achkar, founder and employment lawyer at Achkar Law in Toronto.

“It could be one incident that essentially makes it impossible for other people to continue working with this individual... if someone goes off being racist, there is a potential [to not even] investigate beyond just a couple of conversations, and potentially there's also no need for a performance improvement plan. Because sometimes you can't improve someone from being a racist.”

“It could be that one event could lead to a toxic work environment,” he says.

Constructive dismissal: The costs of a poisoned workplace

It's understood that every individual in Ontario has a right to work in an environment that is free from harassment, in a safe and healthy workplace, says Willetts, also citing Ontario’s Occupational Health and Safety Act that reinforces that expectation or requirement.

And one big concern for employers is the risk of a toxic or poisoned workplace leading to claims of constructive dismissal, meaning a unilateral and fundamental change to the terms of someone's employment.

“If an employer allows this type of culture or this type of environment to develop, that can be a fundamental change, that can be a trigger for an individual to say, ‘Well, this is not what we agreed to, these are not the terms that I accepted and agreed to come and work for you on. This is now a constructive dismissal,’” he says.

“If the environment is that bad, they may be able to say, objectively, ‘This is unreasonable for me to stay in this environment, and I'm going to remove myself and I'm in a position to serve constructive dismissal and seek damages as a result.’”

That claim is going to come at a cost, says Willetts, “and it could be significant, depending on what the terms of the individual's employment contract say.”

There are also the indirect financial costs, such as as the impact on morale, and the damage to culture, he says.

“If a workplace environment is bad or toxic or poisoned, it's possible you may see increased rates of people using things like sick leave because it's difficult to be there. So there's both a productivity cost there, plus the use of those benefits.

“It could also become difficult to attract and retain good staff.”

Takeaways: discipline and just cause

Despite the serious misconduct in this case, the employee’s termination was not upheld – largely due to the faulty discipline process.

In this particular case, there was there was lack of progressive discipline, says Willetts.

“There was no chance for the employee to correct their behaviour... so it's one thing to tell the employee ‘Here's a warning letter,’ but it's another to not actually give them a chance to succeed at correcting their behaviour.

“That is the documentation that judges look for, and vice chairs look for as a board, to decide if it's just cause or not, [along with] investigation notes if an investigation happened, as well as performance improvement plans.”

A major takeaway from this case is even though there's a toxic workplace environment caused by an individual, “documenting is a major thing that was relied on to not find just cause,” says Achkar.

“I do think that when matters go to grievance or to a judge, a good chunk of the decision is based on almost the person who's the ‘trier of fact’ themselves. So there are situations where I would think that the same set of facts would have led to a different decision. But I do think documenting everything is a major takeaway for employers.”

Despite having a poisoned work environment and thinking you have cause to terminate, “unless you've done your homework properly, it will be hard to prove cause — and cause is always hard to prove,” he says.

“So not only do you need to do your due diligence to avoid workplace bullying and avoid liability from all the employees that could be subjected to bullying, it's also important to know how the law on just cause works, so that you know how to treat the individual.”

Avoiding the poisoned workplace

The starting point for any employer keen to avoid this kind of scenario is to have an anti-harassment policy and anti-workplace violence policy, says Willetts.

“You want to have those things carefully set out in writing, and have them implemented; and… perhaps more important, to ensure that those policies have all been communicated to staff so people are aware of what the expectations are, what the requirements are, what rights and entitlements they have, if they feel they are being subjected to harassment or violence.”

Beyond that, if you've been presented with an allegation of harassment or allegation of a toxic work environment, as an employer, you want to take that seriously and move forward by investigating that in a procedurally fair manner, he says, “and then take steps to implement changes or address whatever has or has not been found.”

The investigations don't have to be perfect, they just have to be competent, says Achkar.

“Investigations are only required when someone makes a complaint. They're also required when an employer thinks that there is a potential need for an investigation, or there's potentially bullying and harassment or something to that effect.”

It’s also important to be documenting every step of the way, from the first issue all the way to termination letters, he says.

“Being proactive and taking complaints seriously, at every level, will pay dividends, whether it's avoiding problems later on down the road, but ultimately showing the people that you care about their culture.”