Original article by Howard Levitt posted in the Financial Post, May 22
Imagine what would happen if an employee was slapped in your workplace?
Heidi Bassanese, a 73-year-old employee at German Canadian News Co. Ltd. was such an employee.
Bassanese had worked for 19-years at GCN in an administrative position. Aziz Dhanani, who was employed as an accounts receivable clerk subjected Bassanese to abusive, harassing and unprofessional behaviour over a prolonged period. She complained to GCN’s President Chris Perske on multiple occasions, but Perske did nothing.
The abusive behaviour did not moderate. Several weeks later, Dhanani slapped Bassanese across the face three times. She complained to the company’s managing director and filed a police report. In response, the company decided that it was time to act and did so, that day. But who did it terminate? Bassanese.
The circumstances surrounding Bassanese’s termination are disturbing. What lack of personal control would cause a colleague to slap another across the face?
While workplace harassment and physical violence are shocking, it does occur. And the expectation that violent incidents should be cause for the perpetrator’s termination can sometimes be misguided. When Bassanese sued the company for wrongful dismissal, she succeeded, but if Dhanani was the one who had been fired, would he also have a case?
Wazir Shakur was employed at Mitchell Plastics as a machine operator for six years. In August 2007, Shakur and another employee got into a verbal altercation that escalated until Shakur slapped the co-worker. The incident was reported to the human resources department.
Following an investigation, the employer terminated Shakur for cause. The company stated that he had engaged in harassment contrary to the company policy and the Human Rights Code. Shakur brought a claim for wrongful dismissal.
Mitchell argued that the issue of workplace violence was a serious societal concern, so much so that there is government regulation — the Occupational Health and Safety Act, which governs appropriate behaviour in the workplace. The company also said that Shakur failed to show any remorse or to apologize. The court was not persuaded and ordered Mitchell to pay out 4.5 months in salary.
Too often employers refuse to assert just cause for dismissal, no matter how much money it might save. An outburst of workplace violence should leave an employer confident that there is cause for dismissal; these decisions force a company to sometimes think otherwise.
In the case of Shakur, the employer made efforts to handle the matter correctly. An investigation took place and the perpetrator, rather than the victim, was terminated. One might have thought his conduct, coupled with his refusal to remediate, would be sufficient for cause.
The court disagreed and found termination to be a disproportionate response. The ruling focused on how Mitchell handled its workplace policies. While the company had workplace violence policies and distributed them to all employees, the court concluded that the employer had not done enough to train its employees about the consequences of engaging in workplace violence.
The Shakur decision is a reminder to employers that courts will hold them to a high standard regarding their policies. Had GCN fired Dhanani, it would have faced the same scrutiny.
Employers should take this as a cautionary tale. Adherence and enforcement of workplace violence and harassment policies and procedures will help an employer defend against claims by terminated employees. Companies should ensure their workers are provided with adequate training to facilitate understanding of policies and their consequences.
It is imperative for employers to conduct a thorough investigation of all workplace harassment and workplace violence complaints. Failing to adequately prepare the workplace, investigate or take steps to address inappropriate workplace conduct may result in an employer being ordered to pay not only wrongful dismissal but punitive and aggravated damages.