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HOWARD LEVITT: When employees turn the office into a battlefield, companies can get caught in the crossfire

Employers should institute a code of conduct in the workplace
Employers should institute a code of conduct in the workplace - 123RF Stock Photo

Conflict between two employees got this employer sued for constructive dismissal

Contrary to the old saw, sometimes words don’t matter. While harassment and abuse are prohibited in the workplace, not every act of rudeness or discourtesy gives rise to a tenable legal claim.

As chief estimator of Vancouver-based Wellons Canada Corp., which makes wood and gas powered energy systems, Reza Baraty and his single report, Cris Corilla, were responsible for preparing estimates for on-site installations. While Baraty took care of the administration and workflow of the estimating department, the core duties of providing estimates were the same for both employees. The small size of the unit and nature of the work demanded collaboration.

The relationship between the two men began to deteriorate. After observing what he believed was Corilla performing coding work that was unrelated to his job at Wellon, Baraty reported his suspicions to the general manager. Corilla was outraged when he learned of the allegation. The company accepted his explanation that he was performing work-related tasks, but the die was cast : Corilla and Baraty barely spoke again.

At the urging of the employer,  Baraty unreservedly withdrew his allegations against Corilla, but the resulting truce was short-lived.

Soon after, Baraty filed a complaint accusing Corilla of standing too close to him in a threatening manner and using profanity. An internal investigation revealed that while Corilla’s posture was not aggressive, his profanity was unacceptable. Both employees were directed to sign a Code of Conduct; Corilla agreed but Baraty refused.

The feud continued. Baraty levelled various charges against his report, accusing him of disrespect, mistreatment and insolence. He claimed, among other things, that Corilla typed too loudly and burped audibly. Baraty decided that it was time to fire Corilla for cause or suspend him for five weeks.

Interviews with other staff who worked near Corilla found nothing untoward in his conduct. In an attempt to keep the peace, management assigned him to a different work station.

Palpably dissatisfied with the company’s response to his complaints, Baraty chose to resign and sue the company for constructive dismissal. He contended that the work environment had become intolerable due to Corilla’s alleged bullying and Wellons’ inadequate response.

Mr. Justice Steven Wilson of the British Columbia Supreme Court disagreed. In a court decision, he ruled that nothing had happened in the days and weeks prior to Baraty’s resignation date that rendered the workplace so intolerable as to justify his 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.

Wilson noted that both employees contributed to the dysfunctional relationship. Having observed both men at trial, the judge noted that Baraty was not prepared to assume his share of responsibility for the hostility between them, unlike Corilla. As a result, Baraty’s  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. The lessons for business conveyed by this case are worthy of consideration:

  1. 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.
  2. Investigate legitimate complaints: The law requires that employers address complaints of abuse promptly and effectively. Have designated staff trained in investigations.
  3. 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.
  4. 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.
  5. Use mediation to settle disputes: Even if it is unsuccessful, it shows a proactive approach to workplace harmony, which will impress a court.
  6. 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.

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.

Copyright Postmedia Network Inc., 2019

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