'If you have a serious enough offence, then you may not need progressive discipline': lawyer
Investigations into workplace bullying aren’t just a matter of an employer looking out for itself, according to one employment lawyer.
“[Investigations] are actually looking out for employees who have really serious fears for their physical safety based on some violence [or threats],” says Jon Pinkus, a partner with the Labour and Employment practice group at Samfiru Tumarkin in Toronto. “The key is to calibrate your reaction as an employer with the nature of the allegations, and if they are serious allegations then they deserve a serious investigation.”
Pinkus’ comments follow an arbitrator’s upholding of the firing of an Ontario worker for workplace bullying, despite a lack of prior related discipline.
The 50-year-old worker was a truck driver in the roads operation department for the Regional Municipality of Niagara, Ont., since 2000. His job duties involved road maintenance and repair.
Workplace bullying issues
The municipality took on several employees who worked for a private-sector road maintenance contractor and there was a divide between them and the existing employees.
According to three of the new employees, the worker and his partner tried to prevent them from using the lunchroom and called them derogatory names. On another occasion, one of them alleged that the worker grabbed a shovel out of his hands and threw it in a ditch while insulting him and poking him in the chest. They also said that the worker continually subjected them to foul language and bullying.
One of the new employees complained to a supervisor, who also heard the worker say that he was “going to hang [his own supervisor] – just bury him.” He informed the worker’s supervisor of this comment. The worker’s supervisor was aware of the worker’s regular rude comments felt that the worker was a “negative, toxic person” but no discipline was issued.
On Nov. 10, 2020, senior management came to the yard to speak with employees. The worker and his partner stood in sight but out of earshot to protest how they had handled things during the pandemic. They were both given a letter of discipline for disrespectful and insubordinate behaviour and docked one hour’s pay.
Later that same month, the worker assigned snow fencing placement, but he told the supervisor that he didn’t know what he was doing and the placement was “stupid and wrong.” They argued and the worker received a one-day suspension with orders to review the municipality’s respectful workplace conduct procedures.
Insubordinate behaviour a work
At June 3 employee meeting, the worker said no one wanted to work at the yard because of the management team and made a sarcastic comment. The worker was suspended for three days for disrespectful conduct, with the suspension letter advising that additional misconduct would result in more discipline, up to and including dismissal.
The next day, the supervisor and the yard manager advised the worker of the suspension at a meeting. The worker denied making the and used intimidating and aggressive posturing. Since he was a large man, the supervisors became concerned when he started yelling and moving around. The worker said to his supervisor, “Good luck bud… You better watch yourself.”
Afterwards, the manager learned that the worker had been contacting co-workers for support to build a case against his supervisor for “abuse of power.” In light of this information and the worker’s behaviour at the meeting, the municipality placed the worker on administrative leave and conducted an investigation.
The worker was interviewed twice and 12 other employees were interviewed. In the worker’s first interview, he said he was “fed up” with his supervisor. The worker denied insulting co-workers but admitted to becoming “heated” when he was upset and that he intended to access counselling. He insisted that he treated everyone with respect and he was being targeted because he complained about his supervisor.
Worker apologizes but denied misconduct
Later, the worker told the manager he realized that he had to change and he was willing to work with his supervisor. He also apologized for his behaviour at the June 4 meeting.
However, the other employees consistently said that the worker and his partner were bullies who created a toxic workplace. At his second interview, the worker denied insulting co-workers and grabbing the co-worker’s shovel. He also blamed his supervisor for the tension in the yard and said any disrespect towards the supervisor was from how the worker was being treated. Conversely, he said he “didn’t realize I am the cause of the issue.”
On July 7, the municipality terminated the worker’s employment for “threatening, disrespectful, and intimidating comments to your peers and supervisors,” undermining management’s authority, contributing to a toxic work environment, dishonesty during the investigation, and taking little responsibility for his actions.
The union grieved the termination, arguing that the municipality didn’t follow progressive discipline and the worker acknowledged some misconduct. It also argued that the employer breached a collective agreement requirement that an employee be advised within 14 days of the employer becoming aware of an incident that it deems worthy of discipline.
Although there wasn't progressive discipline specifically for the worker’s bullying behaviour, the seriousness of it and the pattern came out in the investigation, says Pinkus.
“I think it's very difficult to argue that an employer has condoned creating a toxic work environment or has condoned making physical threats to their co-workers,” he says.
The worker also argued that he had benefitted from counselling was handling his anger better. However, he continued to deny most of his misconduct, saying “people say stuff” and the employees who reported his behaviour were all lying.
Contributed to toxic workplace
Despite the worker’s denial, the arbitrator found that the evidence indicated that the worker was “a major contributor to the toxic atmosphere in his workplace.” It was also apparent that this went on for some time before management took steps to stop it, the arbitrator said.
However, the extent of the worker’s behaviour didn’t become clear until the investigation, when 12 other employees were interviewed, said the arbitrator.
The arbitrator found that the employer’s decision to discharge the worker was based on information from the investigation that revealed “a pattern of behaviour” and provided enough reliable information to justify discipline. It was at this point that the municipality became aware of this pattern of behaviour and the dismissal occurred within 14 days as dictated by the collective agreement, the arbitrator said.
The arbitrator also found that management and the other employees were consistent in their accounts of the worker’s behaviour. The worker, on the other hand, lacked credibility because he acknowledged his tendency to get angry and that he needed to improve, but then denied nearly everything that he was accused of.
“When you have persistent misbehavior, even in the face of progressive discipline, then the employer has the ability, potentially, of establishing that that employee was basically Incorrigible,” says Pinkus. “The employer was relying mainly on an investigation [for just cause] - they did a pretty extensive investigation and, if you have a serious enough offense, then you may not need progressive discipline,” he adds.
Just cause for dismissal
The arbitrator determined that the reasons for termination listed in the termination letter were supported and warranted dismissal, given the municipality’s respectful workplace procedures and its health and safety obligations to maintain a workplace free of harassment. The worker’s denial of his misconduct also meant he couldn’t be trusted to change his behaviour if reinstated, said the arbitrator in upholding the termination and dismissing the grievance.
“If the employee is engaged in conduct that is so serious that you can't trust them, you're not obligated to give them notice of their termination because it's not reasonable to have that person in the workplace for any longer,” says Pinkus. “So when an employee starts lying about things that are important, that's very dangerous territory for them to establish that they're entitled to severance or reinstatement.”
“With the union seeking reinstatement, the arbitrator had to consider what would it be like to put this person back into the workplace, and it became very clear that this worker just hated everyone around him,” adds Pinkus.
The case involved not just a question of employer and employee rights around alleged misconduct and the investigation, but also the perspective of the employees who were impacted by the worker’s behaviour, says Pinkus.
“The importance for the employer in conducting an investigation is to do it quickly and efficiently in a way that is respectful of everyone involved in the process, including the person accused of the misconduct,” he says. “There isn't a one-size-fits-all for investigations - just because you get an allegation doesn't mean you launch into a big investigation - but here you had very serious allegations and the employer was vindicated in the end, and that's to the benefit of the employees who were suffering from a toxic work environment.”
