When two co-workers don’t get along.
What would you do?
Based on a real-life situation, a supervisor accuses a worker of performing tasks that are non-work-related. The small size of the unit and nature of the work demanded collaboration. The company accepted the worker’s explanation that he was performing work-related tasks, but the damage was done, the two employees barely spoke again and the relationship between the two men deteriorated.
Soon after, the supervisor accused the worker of standing too close to him in a threatening manner and using profanity. An internal investigation revealed that while the worker’s posture was not aggressive, his profanity was unacceptable. Both employees were directed to sign a Code of Conduct; the worker agreed but the supervisor refused.
The supervisor levelled various charges against the worker, accusing him of disrespect, mistreatment and insolence, and that he typed too loudly and burped audibly. Other staff members did not witness the same behaviour from the worker. In an attempt to keep the peace, management assigned the worker to a different work station.
Dissatisfied with the company’s response to his complaints, the supervisor chose to resign and sue the company for constructive dismissal. He contended that the work environment had become intolerable due to the worker’s alleged bullying and the employer’s inadequate response.
The judge did not agree with the supervisor. In a court decision, it was ruled that nothing had happened in the days and weeks prior to the supervisor’s resignation date that rendered the workplace so intolerable as to justify the right to leave and be awarded damages. The mere fact that there were disagreements and instances of profanity in the past did not amount to a sufficiently abusive workplace.
It was noted that both employees contributed to the dysfunctional relationship. Having observed both men at trial, the judge noted that the supervisor was not prepared to assume his share of responsibility for the hostility between them, unlike the worker. As a result, the action was dismissed.
It is reassuring that the courts acknowledged that a certain measure of resilience will be expected of employees and that an employer need not guarantee a perfect environment.
• What lessons would you take away?
• What could have been done differently?
• What would you recommend?
Institute a code of conduct: Anti-harassment policies are now required of employers by statute. They define the standards of proscribed behaviours; provide a yardstick for compliance and underscore the organizational commitment to a workplace free of abuse and harassment.
1. Investigate legitimate complaints: The law requires that employers address complaints of abuse promptly and effectively. Have designated staff trained in investigations.
2. Keep investigation logs: Wellons maintained careful records of all of Baraty’s complaints and the inquiries it undertook in response. They proved to be invaluable in reinforcing the company’s credibility in court.
3. Retain records of decisions: Baraty complained that Wellons did not investigate an alleged incident of profanity. The employer was able to provide sound policy reasons for not conducting a formal investigation into that claim, which the court readily accepted.
4. Use mediation to settle disputes: Even if it is unsuccessful, it shows a proactive approach to workplace harmony, which will impress a court.
5. Don’t tolerate workplace disruption: Many employers would be impatient with the recurrent complaints by one employee against the other and be reluctant to commit resources to salvaging an irretrievably relationship. Seek employment law advice on how to best deal with such employees without it constituting prohibited reprisal.
Originally published in the National Post, October 1, 2019 by Howard Levitt.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces.The most recent of his six books is War Stories from the Workplace: Columns by Howard Levitt.
hlevitt@levittllp.com
Twitter.com/HowardLevittLaw