Employees behaving badly

Tight labour market no excuse for inappropriate behaviour

Despite labour shortages, employers aren’t turning a blind eye to inappropriate employee behaviour, according to a Halifax-based employment lawyer.

“The job market is tightening, unemployment is declining, workforce participation is seemingly increasing and there’s stiffer competition for available employees,” said ­Brian Johnston, a partner with law firm Stewart McKelvey Stirling Scales.

“However, we are not seeing any prevailing trend or sense that because of this that aberrant, deviant or unacceptable employee behaviour is being condoned or becoming more acceptable in the workplace.”

Johnston recalled a conversation with one of his clients in the health-care field, one of the industries most affected by labour shortages. His client said bad employee behaviour negatively affects other employees and the workplace as a whole, thus making it harder for an organization to attract and retain employees.

“If anything, labour shortages are causing less tolerance of bad employee behaviour because of the concerns of retention and recruitment,” he said.

However, at first glance, two recent cases belie this assertion.

A restaurant manager in Fort McMurray, Alta., testified at a human rights tribunal that he had to tolerate “undesirable employee characteristics” — in this case a male employee sexually harassing a female employee for 14 months — because of an acute labour shortage.

However, the Alberta human rights panel didn’t accept restaurant manager Pyarali Lakhani’s labour shortage reasoning as an excuse for allowing the harassment to continue. In August it ordered the Humpty’s Family Restaurant chain to pay $6,300 to complainant Diane Carr.

In the second case, the Canadian Armed Forces at CFB Gagetown in New Brunswick allowed a psychiatrist accused of sleeping with one of his patients in Newfoundland to continue treating soldiers returning from Afghanistan.

“There’s very limited psychiatric services in the Gagetown area,” Cmdr. David Wilcox, who is responsible for medical services for the military in Atlantic Canada, told the CBC last month. “If his services were to be withdrawn, we would have a hard time filling that gap.”

The psychiatrist, James Hanley, gave up his medical licence and practice in Newfoundland and Labrador in 2005 after Kathleen Wiseman, 44, filed a complaint with the Newfoundland and Labrador College of Physicians and Surgeons, alleging she had a sexual relationship with him while she was in his care.

The investigation by the Newfoundland and Labrador College of Physicians and Surgeons is ongoing, but the college isn’t able to comment on its status or when there might be a hearing. Hanley still holds a medical licence in New Brunswick.

The Canadian Armed Forces took the Newfoundland and Labrador complaint seriously, said a Department of National Defence spokesperson, who stressed there has been no finding of wrongdoing on Hanley’s part.

“He is licensed to practice. Nowhere is there a black mark on his record,” she said.

Officers and the medical team at CFB Gagetown undertook a full review of the complaint in Newfoundland, she added. They also spoke with the New Brunswick College of Physicians and Surgeons and were told that because Hanley was now working in a multi-disciplinary practice with other physicians there was little, if any, threat to soldiers under Hanley’s treatment, said the spokesperson.

Therefore, the shortage of psychiatrists in the area wasn’t the only factor in deciding whether or not to suspend the doctor.

“The Canadian Forces undertook a risk assessment and found that in these circumstances that the psychiatrist did not present a risk to returning combat troops from Afghanistan,” said Johnston. “Although the psychiatrist had given up his medical licence in Newfoundland and Labrador, he had not been found to have violated the code of professional conduct.”

Ed Schollenberg, registrar of the New Brunswick College of Physicians and Surgeons, said there haven’t been any complaints filed against Hanley in New Brunswick.

However, if the Newfoundland and Labrador College of Physicians and Surgeons found there was merit to Wiseman’s complaint, the New Brunswick college could use that finding to start its own investigation, said Schollenberg.

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