Summary
Over six years, there were four workplace harassment complaints made against Mark Hart. He was a manager with 15 years’ service.
The employer investigated the complaints and disciplined the employee, including providing the employee with training and education.
The employer eventually fired the employee for just cause after the employee’s last incident, where he physically intimidated his subordinate over an office seating plan.
A court found the just cause was warranted. His conduct was “serious and inappropriate.” The employee was not entitled to severance.
No Severance for Repeated Harassment
In Hart v. Parrish & Heimbecker, Limited, Mark Hart (“Hart”) worked with a grain company for 15 years as the merchandising manager. His behaviour at work was not the greatest. Four written complaints were made by his colleagues, including the following:
In 2008, Hart became hostile with a colleague over a seating arrangement in the office. He was yelling, verbally abusive, and physically intimidated the colleague. He also pointed his finger at the colleague, threatened her, and slammed the door on his way out.
In 2012, Hart belittled another colleague by undermining her, and yelled at her in an aggressive way. He pounded the boardroom table with his finger and yelled at her for 5 – 10 minutes.
In 2013, another colleague submitted a written complaint about Hart’s behaviour over the past year. The complaint included harassment about taking vacation, general aggressive and nit picking attitude, copying the colleague’s boss unnecessarily, and differential treatment.
In 2014, Hart again became angry over a new seating plan, and stared down the colleague who tried to implement the plan.
After the second incident, the employer directed Hart to take a leadership review course with a consulting company. It was a corrective action taken by the employer so that Hart could get advice on his workplace conduct and dealing with employees in the office. Despite the training, his behaviour continued.
Further, Hart began using his cell phone to secretly record meetings with his bosses.
Considering all of the above, the court decided that all of the employee’s actions was just cause for dismissal. Using his cell phone to record meetings was also a violation of the employee’s confidentiality and privacy obligations to the employer. The employee’s actions were serious and despite the employer’s efforts to help him, Hart did not change his ways.
Employer Education:
The employer did everything right in this situation. After receiving complaints of workplace harassment, it conducted thorough workplace investigations regarding the allegations. It also followed its own workplace harassment policies. Further, the employer did not retaliate or reprise against the colleagues who reported Hart’s harassment. Because of the investigations, it managed to demonstrate that its management actions were reasonable and appropriate, including disciplining the employee after the first incidents.
The employer ultimately fired the employee for just cause. Even though Hart may have been a good performing employee, the employer correctly recognized the negative effects that he had on the workplace. Multiple written complaints of workplace harassment were filed against him. If the employer did not act, it could have faced legal claims from other employees, including constructive dismissal or employees taking a leave of absence for stress leave or a disability leave.
Employee Errors:
After being put on notice that his behaviour was not acceptable in the workplace, Hart still failed to recognize the severity and impact of his conduct. He did not correct his ways. Further, Hart recorded meetings of his bosses when he knew this was a breach of his confidentiality he owed to the employer.
While most employers decide not to offer severance to employees terminated for cause, the employer did offer Hart severance to help him in his transition. Despite the offer, Hart turned it down and decided to sue his employer anyways. In the end, he got nothing and likely had to pay substantial legal fees. Hart would have been better off taking the initial severance offer.
Because the judge decided that his termination was for cause, the employer did not need to pay him any severance. Further, his just cause termination may have disqualified him for employment insurance benefits or EI.
Jason Wong is a Toronto Employment Lawyer who advises employees and employers on workplace harassment, workplace investigations, terminations for cause, and severance. For more information, please call Jason at 647-242-5961 or email him at jason@wongemploymentlaw.com