Debunking some of the workplace myths that still abound
Six common misapprehensions about firings, harassment and unions
What are some of the myths that still permeate the workplace in 2017?
Employers are required to conduct workplace investigations before an employee can be terminated for misconduct
There is no such obligation. It is usually good practice to obtain an employee’s side of the story before dismissing her. For one thing, you may find that your information was incorrect; that could create a costly wrongful dismissal action. For another, in your talk, you may find faults in your systems or learn of others who are similarly culpable. Perhaps the most important is that your inquiry will commit the employee to a version of events and prevent them from inventing a more sanitized version after speaking to legal counsel. Another advantage of interviewing the employees is that their refusal to answer your questions or giving any false information can be cause for discharge. I have won some cases not because of the event for which the employee was investigated but because they lied to the employer during the investigation of that event.
You are required to use outside investigators in conducting harassment investigations
Here, too, there is no such requirement. There are actually disadvantages to using external counsel in your investigations. As above, employees can be fired for cause for refusal to answer questions during an investigation of their misconduct. But if your investigator is a lawyer, employees can refuse to speak to him or her without having their own lawyer present, which substantially complicates the investigation. As well, your investigating lawyer cannot be your lawyer at the trial, as they become a witness. Finally, the evidence of the outside investigator is hearsay; the Judge or arbitrator is required to come to their own conclusions. There are rare circumstances, involving harassment investigations under the Occupational Health and Safety Act, where a tribunal could say that no internal investigator could objectively and credibly investigate, and in that case an outside investigator should be retained. But that would be rare and a lawyer need not be used.
That cause for discharge is consistent between employees
This is false. Cause is entirely contextual. More senior employees, such as a CEO or CFO, can be fired more easily if the cause relates to honesty. Cause must be more severe for the dismissal of a long-service employee. Cause also is impacted by the corporate culture and the nature of the work. Shouting obscenities might be cause in a button-down executive suite but would not be in an auto body shop or in a company where swearing is rife
Unions provide job security for their members
On the contrary, where non-union employees are entitled to wrongful dismissal damages in the event of a downsizing, unionized employees are entitled only to a fraction of that, which is minimum employment standards severance (unless something more is negotiated — which it usually is not).
That unions have to grieve when their members have a meritorious case
This is one myth I often deal with on my Newstalk 1010 show. Unions can decide what they consider to be in their overall members’ interest and can sacrifice even ironclad grievances, if they believe that that employee’s grievance is not a good use of the union’s arbitration funds. They are permitted to be wrong. Although union members can make a complaint to the Labour Relations Board if the union does not take their case, unions are allowed to make mistakes and few such board cases are successful.
Length of service determines severance
In my textbook The Law of Dismissal, I’ve included more than 150 factors courts can consider. Length of service is only one. Short-service employees may be entitled to severance of well over one year.