Tuesday, March 11, 2014

Did the City Handle this Complaint Correctly?

Last week, I made an entry arguing that an employer should not disclose the disciplinary actions taken in response to complaints of misconduct.

This week, there's a story in the Toronto Star raising similar issues.

Here's the fact pattern:

Ms. Rose works for the City of Toronto, and complained about inappropriate conduct by a co-worker in the lunchroom, in that he allegedly unzipped his pants and rubbed up against her.  Apparently, she initially alleged that he had completely exposed himself, but she later admitted that she turned her head away and couldn't be sure.  Her understanding is that, in the ensuing investigation, he denied exposing himself, but essentially admitted the rest of the allegations.

If true, either way, that conduct is extremely inappropriate.  If unwelcome, almost certainly sexual harassment.  In the absence of consent, it could arguably be sexual assault.  So it's pretty egregious.

The problem for Ms. Rose is that the context wasn't exactly flattering of her, either.  Prior to that act, he had said something to her (which she no longer recalls), and her response was "I will punch you in the dick".  Which, itself, looks to be pretty egregious, and led to the employer suspending her.

Ms. Rose contends that her statement was in line with common banter in the workplace - in essence, she's lining up a condonation argument.  Which could work, more or less, if it's substantiated by the facts - it's hard to impose significant discipline for something you've traditionally permitted.  So if she grieves it, that could be a factual basis for reversing or reducing the discipline.

But there's a larger issue here:  She feels that she's being punished for complaining.  And if that's true, that would be inappropriate on any number of levels.  But I'm not sure there's a basis for thinking it's true.  If I'm the boss, whether I'm typically okay with banter or not, seeing an admission in writing from an employee that she threatened to punch a person's genitals...well, I'd have a hard time turning a blind eye to that.  It's certainly something that calls for some response, whether a firm direction "Stop saying stuff like that", a formal reprimand, or something more significant.

At first glance, a suspension seems fairly severe, but there are other factors that could be relevant to that, such as discipline record.  We don't necessarily know all the facts.

Of course, if they suspended her without pay, and just told him, "Yeah, don't do that again", that kind of disproportionate response might support her inference that her suspension was motivated by the fact that she made the complaint...so...

What Happened to Him?

Inquiring minds want to know, right?  Well, the City's letter to her, after they finished the investigation, indicated that there was "some merit" to her complaint, and that the "matter has been addressed".  Which sounds like a whitewash, right?  (Especially in the Star's reporting.)

But this is the point I was making in my last entry:  That is the right approach to these matters.  The complainant has no right to know about the impact the complaint had on the employment relationship between the employer and the subject of the complaint.

Suppose she made a reprisal application to the HRTO, claiming that they were heavy-handed with her to send a message that complainants will be dealt with harshly...the proportionality of their response to her and their handling of the complaint itself might reasonably come under scrutiny, but in the absence of disclosure obligations that come with legal proceedings, it seems to me that the City did the right thing in keeping those details confidential.

Isn't It Inappropriate to Discipline the Complainant?

Anti-reprisal provisions are pretty far-reaching, but they have their limits, and there's a bit of a myth that they shield a person against all discipline.  You can discipline such a person, though not because of the complaint.  (It's kind of like the "You can't fire a pregnant person" myth.  You can fire a pregnant person.  But not because they're pregnant.)

I've often made this observation:  Suppose that an employee seeks accommodation for a disability, but does so inappropriately, in a profane letter which engages in inappropriate personal attacks against the supervisor.  On the one hand, the employer has an obligation to evaluate the accommodation request in a manner consistent with the Human Rights Code - determine if accommodation is required and reasonably possible without undue hardship, and (if so) provide such accommodation.  On the other hand, an employer doesn't have to (and shouldn't) accept profanity and personal attacks from an employee, and can impose appropriate discipline for that.  The fact that the employee is seeking an entitlement, and even a reprisal-protected entitlement, simply is not carte blanche to engage in other misconduct.

So yes, it would be inappropriate to discipline Ms. Rose for complaining.  It's almost certainly appropriate, however, to discipline her for threatening to punch another employee's genitals, regardless of how that issue came to management's attention.

Union Versus Non-Union Remedies

This is an area where being in a union is a bit of a mixed blessing.

A bargaining unit member, such as Ms. Rose, can ask the union to file a 'grievance' of improper discipline.  If she succeeds, and the discipline is rescinded or reduced, then her employee file will be amended accordingly.  This process is available for all manners of discipline.  However, a union can decline to pursue the grievance, and remedies against the union are generally slim-to-none - basically, the union's safe so long as its decision can't be shown to be arbitrary, discriminatory, or bad faith.

An employee who is not in a bargaining unit, by contrast, generally has no remedies akin to a grievance - basically, such an employee's remedies are limited to breaches of statute like the Employment Standards Act, Human Rights Code, or Occupational Health and Safety Act, or to dismissal or constructive dismissal.

So, unless it contravenes an anti-reprisal clause or rises to the level of constructive dismissal, a non-union employee generally has no remedy for inappropriate discipline.

That being said, an unpaid suspension will often rise to the level of constructive dismissal.  The general proposition of law (at this point in time) is that, unless the written contract provides for unpaid suspensions, or the misconduct rises to the level of just cause, an unpaid suspension will constitute constructive dismissal.

And you might be surprised by how frequently this becomes a problem.  The typical case involves a unionized employer and an employee who is not part of the bargaining unit - HR will sometimes fail to appreciate the difference (or even feel more at liberty in dealing with non-bargaining unit members, because there's no prospect of a grievance), and will proceed to impose an unpaid suspension.

Then they get a Statement of Claim alleging constructive dismissal, seeking pay in lieu of notice in addition to bad faith damages.  And by contrast to the 'temporary layoff' class of cases, it's much harder for an employer to resile from such a suspension and return the employee to work.

(However, on some of these files I've had, there were other strategies to consider as well.  For instance, there are cases where the employee, for good reason, would rather fix the employment relationship instead of quitting and suing.  In that case, the threat of a constructive dismissal action can be used as leverage to bring the employer to the table to discuss a mutually satisfactory resolution of the issues - basically a pseudo-grievance.)


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. 

No comments:

Post a Comment