Investigations have become an integral part of HR and employment law, and an employee’s conduct in the course of an investigation can be the difference between summary dismissal and some lesser form of punishment. As I wrote in a previous blog post,
In writing my book, as well as the bi-annual updates, one observation that I made is that the employee’s response when confronted with the allegations has become one of the most important factors in assessing whether the employment relationship has been irreparably harmed. That, essentially, is the question that a court is seeking to answer when assessing whether just cause for dismissal existed.
As a result, courts will often scrutinize the employee’s conduct during the course of the investigation quite carefully. If the individual was forthright about the misconduct, ideally coming forward even before they are confronted, and if they offer reasonable explanations, are appropriately apologetic, and offer reasonable assurances that their misconduct was an anomaly that will not be repeated, courts will be more likely, all else being equal, to conclude that the individual should be given a second chance. Conversely, if the employee lies about the misconduct when confronted, or actively attempts to conceal their misconduct, courts will be more inclined, all else being equal, to conclude that the employee cannot be trusted and that summary dismissal is appropriate.
This issue was at the forefront of the recent arbitration decision in Ontario Power Generation and Power Workers’ Union (re R F), in which the grievor was dismissed for a safety violation and, as well, dishonesty during the course of the investigation. His role was supervisory, and he had approximately 7 ½ years of service. During an assigned project, as the arbitrator found, the
grievor’s and his crew’s assessment of the gasket was quite inadequate. He, and they, were wrong in their assessment of the gasket material. The gaskets were made of asbestos, although blue in colour in the centre. As will be seen, there were ways to determine with greater certainty that the gaskets were asbestos. The grievor did not explore them.”
A contract employee filed a complaint about the grievor’s conduct, which the grievor was advised of. He then directed his crew to clean up the work area, effectively eliminating some evidence and preventing a full investigation. The grievor did not file a station condition report (SCR). In his daily report, he made no mention of the worker complaint or any of the issues that were experienced, effectively ignoring the situation entirely. He then allegedly lied when asked about the circumstances, later changing his story. At another disciplinary meeting, he was defensive and accusatory.
The arbitrator noted that the safety incident, in and of itself, may not have led to the conclusion that summary dismissal was warranted. However, he went on to note four things the grievor did in response to the complaint that are relevant to the ultimate determination:
- not conducting “any investigation of the complaint, which, despite what the grievor says was his impression at the time, was a formal health and safety complaint; not at that point to check Passport to determine whether, in fact, the gaskets were blue guard… Had he not sought to put a quick end to the complaint he would have made inquiries, including a record check within Passport to satisfy himself that his initial determination was accurate.”
- the decision not to write any SCR despite having written SCRs for far less serious matters in the past.
- the decision to clean up the area in violation of the policy that an investigation take place and that no changes be made to the site of the worker’s complaint of asbestos until the investigation was completed, which, as the arbitrator commented, suggests a cover-up, and
- “the grievor’s own OPEX report of the shift at the end of the work day. Unusual things had happened. The gasket had been unexpectedly difficult to remove. An unusual step had to be taken, to move from the hand tools to an electric grinder. There is no mention of these things in the OPEX. The OPEX reports often contain relatively mundane details of the day’s work, but they also contain the unusual events of the day, to alert the next shift to the issues that arose and to the solutions that were found. There is also no mention in the OPEX of the worker’s complaint, no mention of how it was handled. Comparing what the grievor put into the OPEX report and what he left out strongly suggests that he kept in all that was banal and routine and excluded all that was potentially problematic, all of what might have caused some further inquiry. As a result, his OPEX entry gave a misleading account to the oncoming FLMs because it did not in any manner draw attention to a potential hazard that had been created.”
The arbitrator considered potential explanations for the grievor’s post-incident conduct, preferring the explanation that he was deliberately attempting to conceal evidence that might get him into trouble.
The manner in which the grievor responded towards the end of the day, and the next day, to the worker’s safety complaint and to the risk of asbestos contamination showed him to act in a manner best served to avoid difficulty for himself. He was willing to put at risk the health and safety interests of the employees for whom he was responsible, as for those coming on shift after him.
OPG must ensure that its safety rules are strictly complied with, as it generally does. When an employee disregards the appropriate safety checks, when the risk of harm is substantial, as I have found to be the case here, the consequence to the employee should be severe, to reinforce the importance of safety and adhering to the safety rules and procedures.
Most importantly, the company must be able to trust its employees and supervisors to come clean and admit their wrongdoing, particularly when workers’ safety is affected. The grievor fundamentally breached that trust by his failure to make any report of the grinding of the gasket, of the worker’s safety complaint, and of the assertion by the complaining worker that the gasket was asbestos.
This is a great example of a situation where the employee’s response, when confronted with allegations of wrongdoing, was the deciding factor in the assessment of whether summary dismissal was warranted. Employers must investigate any alleged wrongdoing, and should be particularly mindful of the employee’s conduct in the course of the investigation and the impact that it might have on their ability to trust him or her in the future. Employees should never cover up, mislead or lie in the course of an investigation, as doing so will only make it more likely that there will be just cause for dismissal.