Tuesday, March 4, 2014

Responding to Customer/Employee Conflict

Employers don't have it easy these days.

Consider this recent incident, caught on amateur video and reported in the Toronto Star:  In a Sears in Winnipeg, an employee became engaged in a dispute with a customer.  It appears that the dispute began when the employee asked the customer to get his child off of a lawnmower display - which, on its face, would be reasonable enough, but there was significant escalation, with the customer becoming abusive and profane, and the employee expressing a racist retort.

On the one hand, the employee's racist remark clearly crossed a line, and was extremely inappropriate.  It's not hard to imagine Sears (and the employee) being on the receiving end of legal proceedings because of it.

On the other hand, the customer acted inappropriately as well, and employers arguably owe a duty to protect their employees from abuse by customers.

Complicating matters further is that the customer began to demand that the employee be fired.  And it appears that Sears acquiesced to this demand, telling the press that the employee has been fired.

And it looks to me like Sears' handling of the dispute is more about PR than HR.  From an HR perspective, it's not exactly ideal.

Discipline is a Contractual Matter

Perhaps to Sears' credit, the employee isn't actually named in the news report.  However, I would not generally recommend issuing a press release detailing disciplinary matters.

Discipline is a contractual matter between the employee and the employer.  It really is nobody else's business.  A customer has no right to insist on the dismissal of the employee.  Even on a Human Rights complaint, it is unlikely that a tribunal could or would order the termination of the employment relationship.

There's a reason for this.  Discipline is not exactly about 'punishment', in the traditional sense, and certainly not in the 'retributivist' sense of the word.  It's about clarifying expectations in the employment relationship.  The primary purpose of discipline is to correct behaviour, and improve the employment relationship moving forward.  A disciplinary dismissal is only appropriate where, and because, the employment relationship between the employer and the employee is no longer sustainable in light of the employee's conduct.

By contrast, when a customer is calling for an employee to be fired, it will almost always be about spite, or retribution.  Such customer demands ought to be completely irrelevant to an analysis of appropriate discipline.

And likewise, the customer has no right to even know what disciplinary steps have been taken.  It is more appropriate for an employer to act with discretion, to deal with the employment issues appropriately, behind closed doors, with reference to all the other relevant factors for discipline (which, likewise, the customer will not know), and to say to the outside world only that the matter is being dealt with, but is an internal and confidential matter of employee relations.

Dealing with Difficult Customers

A few weeks ago, I was in an LCBO, and there was an irate man at the customer service desk.  I don't know what the actual issue was, but most of his yelling that I heard seemed to focus on the allegation that the LCBO employee didn't "care" - presumably that she wasn't becoming visibly upset, crying, or apologizing profusely in the light of whatever issue he had.  Frankly, I thought the employee was handling the abuse pretty well, not yelling back, just speaking in a measured tone, insisting that she did care, doing what she could to resolve the issue (or so it seemed from my perspective)...while I'm pretty sure a little bit of irritation bled through into her tone, it was well-masked.

This is not uncommon in retail, or other lines of business.  And it's a problem for employers, particularly in Ontario with growing obligations relating to workplace harassment and violence.  In professional settings, such as law offices, there's a choice to be made, and it's not unheard of for lawyers to 'fire' clients who become abusive with the staff.  In retail settings, however, it's virtually impossible to protect against customer abuse.

There are two important facets to a policy that responds to abusive customers:  The first is the opportunity to escalate.  When a front-line employee is receiving abusive behaviour from a customer, the most appropriate response (from an HR perspective and from a customer service perspective, as it happens) is for the employee to say, "I'll go get my manager to help you resolve this matter."  A manager should come out with a problem-solving mindset, not looking to lay blame, not looking to take sides in the dispute, but just wanting to figure out what the issue is, and how best to move forward.  If there's discipline to be considered, that's a matter for later.  This philosophy will not only be a more effective way of addressing the issues, but will also ensure that employees aren't afraid to call their manager because of concerns that the manager will take the customer's 'side'.

Where there's personal animosity, then after getting the initial facts, the manager might consider telling the employee to attend to some task elsewhere, to remove the catalyst from the reaction.  It appears that the racist exchange between the customer and employee in the Sears case occurred after a manager had arrived.  Telling the employee to go take inventory might have prevented further escalation of the conflict, rather than allowing the employee and customer to continue attacking each other.  The manager still seemed to be awfully timid even after the racist remark, not appreciating that these two needed to be completely separated to avoid exacerbating matters.

The second important facet is to be prepared to tell the customer to leave, and to be prepared to resort to security or the police if the customer refuses to do so on request.  When the manager tries to address the issue, if the customer remains abusive, the manager is entitled to not have to take that sort of abuse either, and the 'out' at that stage is to remove the customer from the premises.

That's the extent of the control that businesses have over their customers.  Set all the rules you want, but at the end of the day the only recourse a business has against a customer who doesn't abide by the rules is denial of service.

Disciplining Employees

Standing up for an employee taking abuse from a customer doesn't necessarily mean turning a blind eye to inappropriate conduct by the employee.  It is prudent to set clear expectations of how an employee should deal with an abusive customer, and if the employee does not meet expectations, discipline is appropriate.

But it's a distinct issue from resolving the customer concerns themselves.  If a customer wants to complain about an employee, that's fine, but there's an investigation to be taken, and receiving the customer complaint is just the first step in the investigation.  And informing the customer of the outcome or results of the investigation is not a step at all.  Before the investigation:  "Thank you for your input; you've raised some very serious allegations, which we will deal with thoroughly."  After the investigation:  "We've thoroughly investigated and taken the necessary steps internally to ensure that nothing like this will happen again."

Publicizing the discipline may well be seen as a violation of the employer's duty of good faith and fair dealing.  Or possibly independently actionable, in the wrong fact pattern.  It's really not a good idea.

When imposing discipline, too, it's important to bear in mind the context.  If there's a clear policy telling employees how to handle the situation, then the failure to act in accordance with the policy might be aggravating.  (So suppose I'm told by the policy to call my manager when there's abusive behaviour.  If I choose to fight my own battles, and it ends up in an inappropriate shouting match, then my employer's going to ask "Why didn't you call your manager?"  By contrast, if there's no policy giving me clear guidance, then the fact that I reasonably don't know how best to respond to that kind of abuse...is mitigating.)

As well, remember that dismissal for cause has a very high threshold.  Does the racist remark in this incident meet that threshold?  Maybe.  It would depend on other aspects of Sears' policies and the employee's own record, but, as serious as it is, just cause from a single incident of misconduct requires something very extreme.  I'm not sure that this would quite do it, on its own.  Furthermore, in light of the fact that the dismissal may have been a PR move, rather than motivated by a bona fide assessment that the misconduct made it impossible to continue the employment relationship, it may undermine a case for just cause.  (In general, it doesn't so much matter why the employer made the decision to fire.  If there's just cause, there's just cause.  But there are exceptions, and remember that Sears is already facing law suits in Ontario seeking significant punitive damages on the basis of 'trumped up' allegations of just cause.)

Redress for Aggrieved Customers

You shouldn't put aggrieved customers in charge, or even in the loop, of your HR department.

That doesn't mean that you can't take steps to try to make it right.

An apology might be advisable in appropriate circumstances (generally, after the investigation is completed and it is determined that the employee did mistreat the customer).  But there's a balance to be struck here, too.  In general, I would say that the employee has no reasonable expectation of any particular approach to the customer (so if I want to apologize to a customer and offer a discount to maintain the peace after an employee dispute, even though I know that the employee didn't do anything wrong, that's my right), but there are three concerns.  Firstly, if you apologize incorrectly, you might be taking on liability unnecessarily.  Secondly, if the employee's alleged conduct might be actionable against the employee, then apologizing for something that didn't happen might end up subjecting you to a range of claims by the employee.  Thirdly, if customers know that picking fights with employees and making allegations of misconduct is a way of getting favourable service and perks from management, then you might be tacitly encouraging such abusive behaviour.  (Similarly, if you're rewarding the squeaky wheel, then you need to bear that in mind when investigating allegations against your employees.  If I know that I'll get a discount on my meal if I say that my fries were overcooked, then the fact that I say my fries were overcooked might just be a matter of me being cheap and dishonest, and not a reflection of the cook's performance.)

For all three reasons, it is important to thoroughly investigate allegations of employee misconduct before taking any action.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer. 

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