Investigations Gone Wrong!

What do these situations have in common:

• Sally, one of your employees, accuses her co-worker Bob of sexual harassment.
• A warehouse inventory reveals that supplies are missing.  You review footage from the security camera, and it looks like Mike has been removing company property without permission.
• Jessica and her boss Mary never hit it off.  Now Jessica comes to you in tears, with a doctor’s note, requesting a leave of absence for stress.  She attributes her ill-health to Mary’s persistent harassment.

In each situation, the employer must undertake an investigation, and bungling the investigation could have serious legal and likely financial consequences.

A couple of recent decisions highlight the need for a fair investigation carried out by a neutral party.  (Please note that I am not a lawyer and none of this is intended as legal advice.)

Here are some things to keep in mind:

You must inform the respondent (i.e. the person who is accused of harassment, etc.) of the accusations against him or her.

In Elgert vs. Home Hardware Stores, Elgert was accused of sexual harassment by a young woman he supervised.  The investigator (more about him later) interviewed the alleged victim and some of her associates, and on that basis, fired Elgert, without ever telling Elgert what he was accused of doing.  Instead, the investigator repeatedly told Elgert, “You know what you did.”  Elgert was escorted off the premises and not allowed to return to collect his belongings.

If the investigator had done a little more digging, he might have found that the complainant (the woman who made the accusation against Elgert) had been heard to say that she would “get even” with him after he gave her a negative performance review and moved her to a work area away from a young man in whom she had a romantic interest.  I can’t provide every detail of Home Hardware’s bungling of this case, but suffice it to say that an Alberta jury awarded Elgert two years’ pay in lieu of notice and substantial damages.


After informing the respondent, you must give him or her a chance to tell their side of the story.

Home Hardware is not the only employer who failed to realize that there might be another side to what looked like a clear case.  Allied, a maintenance company, terminated five employees after a surveillance video seemed to show the men removing cans of soda from a vending machine on a client’s property by reaching up into the dispenser.  Allied argued that its policy of zero tolerance for theft justified the firings. 

However at the hearing before the Labour Relations Board of Quebec a representative of the soda company testified that the machine in question was known to be faulty and that cans of soda would sometimes get stuck in the dispenser or not be released at all.  Moreover, the amount of money in the machine corresponded pretty closely to the cost of the missing cans.  The Labour Relations Board overturned the terminations.  No word yet on damages for the employees.

Hat tip:  I first read about this case in a blog post by Diana Theophilopoulos who is a lawyer with Stikeman Elliot in Montreal. 

It is not enough that the investigator is a neutral party.  The investigator must also be perceived as being neutral.

Back to Elgert vs. Home Hardware Stores:  The executive who was given the task of investigating the complaint against Elgert had no training in investigating sexual harassment complaints.  What’s worse, he turned out to be an old friend of the complainant’s father. 

Even if the executive were a thoroughly trained and highly experienced investigator of such claims, he should not have been selected for the job.  Many reasonable people would argue that, as an old friend of the complainant’s father, it would be difficult for him to remain neutral.  This is not to say that such a relationship would inevitably mean that the investigator was biased.  It is enough that the relationship raises a reasonable doubt about his neutrality.  In other words, it doesn’t pass the “smell test.” 

Think carefully about the investigator’s mandate.  Is this primarily a legal issue, or is the organization’s reputation also at stake?

You may have read about Mike Rice, the university men’s basketball coach at Rutgers who was filmed behaving in an abusive manner towards the young men on the team.  It turns out that Rice had been investigated for abusive behaviour before the video surfaced.  But the investigators’ mandate had been to discover whether Rice perpetrated a “hostile work environment.”  (The answer was no, largely because student athletes are not “employees”).  The investigation focused on a narrow, legalistic question, rather than on wider issues of whether Rice’s conduct made him appropriate as a representative of the university and a suitable role model for young athletes.  Rutgers has had legal costs in getting out of the mess; more importantly, its reputation has suffered.

The main lesson for employers:  Investigations are serious matters.  Personal reputations are at stake and the stress level – even for those not directly involved – is likely to be high.  If an investigation is warranted, do it properly to avoid future legal hassles and costs.

Related Posts:

Bill 168 – Investigating Complaints under your Policy

Workplace Sexual Harassment: A Problem for Management 

Bill 168: A Recent Arbitration Decision

Note:  I offer investigations of complaints related to workplace harassment, bullying, sexual harassment, and other matters covered under bill 168.  See my website for more information, or contact me directly to discuss the situation in your workplace.

Defining Workplace “Harassment” – Another Decision

In Ontario’s Bill 168, “harassment” is defined as a course of “vexatious” (bothersome) comment or conduct that is unwelcome, or ought reasonably to be known to be unwelcome. But what does this mean in practice and how might it apply to your workplace? I wrote last summer about an arbitrator’s ruling that provided some guidance as to the law’s scope and application. That case focused on a nurse’s harassment of her co-workers. Here I summarize another relevant case, heard by the Labour Relations Board. This time the allegations were of harassment by a supervisor.

(I should note: Patrick Kelly, the vice-chair of the Labour Relations Board, made a number of rulings regarding this case. The latest one is here. Many of them have to do with jurisdictional issues. I have focused on his reasonings regarding harassment, and I have omitted and simplified the more technical (nerdy) legal issues. As regular readers of this blog already know, I am not a lawyer and none of this is meant as legal advice! If you are concerned about your rights in the workplace, contact your union representative or an employment lawyer.)

Background:  The applicant (I will call her “Jane”) had been employed as a social worker in a nursing home for about seven months when a new Administrator took over.  (I’ll call the new boss “Mary.”)

Allegations:  Jane alleged two incidents of harassment.  Mary told Jane several times that she was to document every conversation she had with a resident’s family members, for the purposes of any legal actions that might be brought against the Home.  Jane told Mary that she was having trouble keeping up with all of the necessary paperwork (the “Resident Assessment Protocols”).  Mary told her to work harder, and to put in extra hours if necessary, in order to finish everything on time.  She also said that Jane might face a suspension if she couldn’t complete her work on time.

In another incident, Jane alleged that the Home’s Director of Care yelled at her during a meeting to discuss a resident’s treatment plan.  Two days after the meeting she was given a written warning for failure to cooperate with the Director of Care.

After these two incidents, Jane wrote an email to a number of people in the senior management team, expressing concern that Mary did not have a good understanding of the social worker’s role.  She asks for “support” in dealing with Mary.  Shortly after this, Jane’s employment was terminated.

The Decision:  Mr. Kelly found that the two incidents Jane described did not constitute workplace harassment.  The second incident – where the Director of Care yelled at Jane in a meeting – was “rude” but not an example of harassment.  (If you remember from the definition, harassment is a “course” of vexatious conduct or comment, rather than a single incident.) 

What about Mary’s requests to Jane to document conversations with residents’ families and her threat that Jane would face termination if she could not finish her work on time?  Again, this does not fall under the definition of harassment, and Mary’s expectations of Jane were not unreasonable.  As Mr. Kelly put it, Mary “made a blunt, unflattering assessment of [Jane’s]  performance and demanded in no uncertain terms that she fulfill management’s work expectations or risk discipline.”  While acknowledging that Mary could have shown “greater tact and sensitivity,” Mr. Kelly stressed that sometimes the exercise of management has negative consequences for workers, but that does not make it harassment.

Lessons for Employees:  Try to work things out with your boss before going over his or her head.  If you do go over your boss’s head, don’t be surprised if senior management sees things differently than you do.

Lessons for Employers:  While the actions I have described here may not fall under the legal definition of harassment, they are not good management practices either.  I suspect that these incidents and the resulting appeal to the Labour Relations Board were bad for morale and an irritation for management.

Note:  I offer investigations of complaints related to workplace harassment, bullying, sexual harassment, and other matters covered under bill 168.  See my website for more information, or contact me directly to discuss the situation in your workplace.

Review of Who Gets What: Fair Compensation after Tragedy and Financial Upheaval by Kenneth R. Feinberg

Money is the medium of exchange, and it is the means by which victims in the civil justice system are made “whole.”  Even those who everyday speak of the “value” of injuries and cases (including lawyers, mediators, arbitrators and adjustors) must pause sometimes and find this strange.  Pain and loss seem incommensurable such that any monetary “value” put on them can only be arbitrary.  And yet how else might victims be made whole, if not with money?

Kenneth Feinberg has probably had more opportunities to ponder these questions than any of us.  He has had a remarkable career as an arbitrator in the aftermath of terrible and large-scale crises.  In 1984 he was appointed special master of the settlement that ended the class action suit of 250,000 Vietnam veterans against the manufacturers of the defoliant Agent Orange.  Years later he acted as head of the September 11th Victim Compensation Fund and was the target of considerable anger and frustration, when, as was certainly inevitable, there was disagreement over whom should be compensated and what compensation would be fair.  Either of these positions would have given Feinberg a abundance of experience and material for reflection.  Yet these two positions do not exhaust his experience.  He also managed the Hokie Spirit Memorial Fund (for victims of the mass shooting at Virginia Tech in 2007); he was appointed by Treasury Secretary Timothy Geithner to determine executive pay for companies that benefited from the Troubled Asset Relief Program (TARP); and he administered BP’s Gulf Coast Claims Fund in the aftermath of the 2010 Deepwater Horizon explosion and oil spill.

In Who Gets What Feinberg tells us how he came to be seen as the go-to person for resolving complex public legal disputes.  Then he reflects on his major appointments: The legal framework in which he worked and how that framework constrained him, how he arrived at decisions, and what he learned from each assignment.  (I have not read his earlier book, What is Life Worth? devoted to his tenure as special master of the September 11th Fund).  Although Feinberg has no formal training in alternative dispute resolution, his methods will be familiar to those who do.  He values his neutrality and the public perception of that neutrality.  A former aid to Senator Edward Kennedy, Feinberg was appointed to the September 11th Fund by the Bush administration, and then to the TARP assignment and the Gulf Coast Fund by the Obama administration.  He stresses the importance of listening and of making disputants feel heard.  In each assignment, Feinberg made considerable efforts to ensure that anyone who would be effected by his decisions had an opportunity to meet with him and plead their case. And when disputants are reluctant to settle their claims, Feinberg knows the issues well enough to be effective reality tester.  (He asks the lawyer of a retiring CEO if he wants his client “dragged before Congress to justify his salary as he departs?” when the lawyer has balked at accepting Feinberg’s recommendations.)  Feinberg also recognizes, as do all good mediators, that money also has symbolic value and that financial compensation is about more than a number of dollars.  This lesson is impressed upon him a number of times in his career, whether he is dealing with relatively poor Vietnam war veterans, or with wealthy Wall Street Executives (who, not surprisingly, give him his biggest headaches.)

Although Feinberg tells us something of his early life and career, I found that gained little sense of his personality though the book.  He writes well and clearly, if with little pizzazz.  Feinberg has had a unique and fascinating career as a mediator and arbitrator, and I think that anyone interested in public conflict or in alternative dispute resolution, or even in recent American history, will find the book of interest.

Apologies 201 (Advanced Course)

I wrote about apologies last January, and it seems like a good time to revisit the subject.  You can find a lot of information on the internet about how (and how not) to apologize.  You can find lists devoted to the worst ever apologies by public figures.  Admittedly, little of what I say below is original.  Still, I hope it will be useful.

1.  “I’m sorry that I…” vs. “I’m sorry that you …”

One of the key components of an effective apology is that the speaker takes responsibility for his or her actions.  If a speaker fails to take responsibility those on the receiving end of the apology are likely to be dissatisfied.  You can make sure that you are taking responsibility by formulating your apology with the words, “I’m sorry that I …”

An apology that starts with the words “I’m sorry that you …” (were offended, were upset, were inconvenienced, etc.) will do nothing to repair a broken relationship.  It might even make the other person feel insulted and resentful towards you.

This form of apology – called the “non-apology apology” is unfortunately so common that it has its own wikipedia entry.

2.  “I’m sorry if I …” 

Avoid this phrasing.  At worst, including the word “if” sounds like hedging and the attempt to evade responsibility.  At best, it makes you sound emotionally out-of-tune with the apology recipient.

Compare:

I’m sorry if I offended you.  [I’m not sure if I did or not.]

I’m sorry I offended you.  [Pause]  It certainly wasn’t my intention.

In the first, the speaker gives the impression that he or she isn’t sure that others have been offended.  There is room for doubt.  If you are not sure whether someone is offended or not, there is no harm is asking.  But apologise right away rather than waiting for an answer. 

Did I offend you?  If so, I’m sorry.

If you wait for an answer, you put the other person in the socially awkward position of having to say, “Yes, you offended me.”  It isn’t easy for most of us to say this.  It sounds confrontational.  Rather than put someone in an uncomfortable position of having to tell you that you offended them, apologize if you even suspect that you might have done so.

3.  I’m sorry but …

I’m sorry but I’ve been having a bad week …  I’m sorry but I’m under a lot of pressure at work … I’m sorry but you should have known better than to …

Where to start?  When you say “I’m sorry but…” the part that comes after “but” negates the apology.  People won’t hear “I’m sorry” because your self-justification will be ringing in their ears.

There may be a time to explain yourself and to offer testimony about extenuating circumstances.  The time to do this is not when you are offering an apology.  The apology is supposed to meet the needs of the other person.  In a proper and effective apology, one takes responsibility, offers contrition, and acknowledges the other person’s feelings.  Self-justification and explanation (if appropriate) can come later.

Compare:

I’m sorry … but I had a really bad day.

I’m sorry.  I shouldn’t have acted in the way that I did.  [Pause]  And I want you to know that I had a really bad day at work, although that is no excuse.

Which would you rather hear?

Finally, if you don’t feel sorry about something, don’t apologise.  Most people are pretty good at detecting insincerity.   A false or half-hearted apology is arguably more destructive of relationships than the lack of an apology.

Winter 2013 Newsletter

The Winter 2013 newsletter for Principled Dispute Resolution and Consulting is now available on the newsletter archive page.  Have you subscribed?  Every three months or so I share content that I don't post on this blog.  The sign-up form is on the left.  Scroll down if necessary.

Inflation Alert: The Language of Violent Conflict

Around the time when Justin Trudeau announced his candidacy for leadership of the Liberal Party of Canada, I remember seeing an article that claimed that he had a good chance because he had “spent time in the trenches” during the previous federal election campaign.

Justin Trudeau in the trenches?  Had he been embedded with Canadian forces in Afghanistan?  How come I had not heard about it?  I continued reading.  Of course, Justin Trudeau has spent no more “time in the trenches” than I have.  The writer was referring to his door-to-door campaigning in Montreal.  Now, I realize that Montreal can get pretty cold, and that people aren’t always friendly to unsolicited visitors.  But this hardly amounts to “time in the trenches.”

Military metaphors and the language of violent conflict are a ready source of clichés for journalists and bloggers.  We have the “war on the car,”  the “war on Christmas,” “patent wars” between Apple and Samsung, and even an alleged “war against boys” in the education system.  It is commonplace to describe any dispute as a “battleground.” We often hear of the necessity to “open a new front” in some conflict.  (This usually amounts to something like filing a motion in court.)  Last week Bill Daly, deputy commissioner of the National Hockey League, made the ridiculous remark that the NHL’s demand to limit player contract lengths to five years would be “the hill we will die on.”  Please.  I understand that professional hockey is important to many people in this country, and if I were one of those people, I would certainly be very frustrated right now.  But holding fast to your position in a negotiation is not remotely like a heroic martyrdom in battle, no matter how much money or whatever “principles” are at stake.

The appeal of exaggerated language is not hard to fathom. Leaders speak of “rallying the troops” and “fighting the good fight” because doing so is motivational.  People need to feel that their actions matter, the consequences are significant, and that the conflict they’re engaged in is important.  Journalists present rather banal disputes and legal contests as “battles” in an effort to gain and hold our attention.  But not every conflict is worthy of a “fight to the death.”  The stakes are not always high. Even in a zero-sum type of conflict where compromise is impossible and only one side can prevail, the consequences of both winning and losing can be less momentous than the participants believe. The passage of time has a way of making both wins and loses less important than they seem at present.

The overuse of military metaphors is tiresome, but that isn’t the most important reason to resist it.  This form of language inflation has consequences.  If a conflict is a “battle” or a “war,” then it follows that one’s opponents are “the enemy” (and perhaps “evil” as well.)  If one side is the “victor” (who presumably is entitled to the spoils), then the “vanquished” side is shamed or humiliated.  If the other party in a dispute is not just someone you happen to disagree with, or someone whose interests are opposed to yours, but an “enemy,” then that makes compromise much more challenging.  It makes hearing their position more difficult, and opportunities for joint problem solving and mutual gain are likely to be overlooked.

Considering every disagreement, whether it is a civic dispute, a political difference, or a legal contest, as a “war” or “battle” is probably bad for your mental health, and maybe even detrimental to the public good.  Violent conflicts with life-and-death consequences are taking place now in Afghanistan, Syria, and Congo, to mention only a few.  Let’s not trivialize the experiences of people there by exaggerating the importance and severity of our own conflicts.

What is “constructive dismissal”?

Can you quit a job, and yet still be fired?  Can an employer fire employees even though they seem to have left the job of their own free will?  These questions are not riddles or zen koans, but refer instead to one of the trickiest concepts in employment law: “constructive dismissal.”

“Constructive dismissal” sounds like it might be a good thing – sort of like “constructive criticism.”  The reality is different.  “Constructive dismissal” may have occurred in the following scenarios:

Susan is employed as a sales manager in downtown Toronto.  Her boss tells her that, due to changing priorities in the company, she will have to re-locate to Inuvik.  Rather than make the move, Susan quits.

Bob runs one of the departments at Acme Co., and has twenty people reporting to him.  After a corporate reorganization, Bob is demoted, his responsibilities greatly diminished, and he is asked to take a 50% pay cut.  Bob quits, deciding to try his luck on the job market instead of accepting the new circumstances.

In both of these cases, the employer has unilaterally changed the terms of employment so greatly that the original employment contract seems to have been violated.  When she was hired, Susan was never told that her job could involve relocation.  Bob was hired into a managerial position and it was never indicated that his responsibilities and salary could be reduced.

“Constructive dismissal” may also be a possibility in the following scenario:

Jane is a receptionist in a downtown office.  Her supervisor, Sally, is very demanding and impatient.  If Jane makes the slightest error, Sally yells at her, even if there are other people around.  Jane is good at her job, but she gets so nervous when Sally is around that she makes errors.  Jane dislikes conflict and the situation is starting to get to her.  The stress is affecting her health.  She has tried to speak with the Human Resources Department, but they said that they couldn’t do anything.  It seems that Sally has a history of this kind of behaviour.  Rather than confront Sally and stand up for herself, Jane quits.

In each of these cases, I have said that constructive dismissal may be a possibility.  This is an important issue because it affects severance pay.  An employee who quits is not usually entitled to severance pay.  But an employee who is dismissed (or constructively dismissed) may be entitled to severance pay. 

I am not a lawyer and this blog is not intended as legal advice.  Constructive dismissal is a very tricky area.  If you think that you may be in a situation where constructive dismissal is a possibility, please get legal advice before taking any action.  You can contact the Employment Standards Information Centre, or to get advice about your specific situation, contact an employment lawyer. 

If you are an employer, please consult with a lawyer about your obligations under the Employment Standards Act before thinking creatively about how to “encourage” employees to move along.  Fulfilling your obligations under the law might prove costly, but not as expensive as losing in court.