These days, violence in the workplace can be a significant liability for employers, in various ways.
When Dan Gjema was pushed too far by another employee, he pushed him back – literally. Although it cost Mr. Gjema his job, a Manitoba court found in 2012 that his employer was ultimately to blame.
Mr. Gjema, general manager of the Mercury Specialty Products plant in Winnipeg, hoped to eventually become company president. But he had a big problem standing in his way: His production manager and direct subordinate, Romy Alcantara, did not take kindly to his directions. He would often respond loudly and in anger to Mr. Gjema's instructions, and sometimes he would not respond at all. This came as no surprise, because Mr. Alcantara was known for being difficult to work with and had confronted other employees.
Matters came to a head when Mr. Alcantara refused to work on a project assigned to him by Mr. Gjema, who finally had enough. He gave Mr. Alcantara a warning letter threatening to terminate his employment.
He was not amused. In front of a group of employees, Mr. Alcantara charged at Mr. Gjema, challenging him to a fight and swearing at him. When he put his finger into Mr. Gjema's chest, presumably to provoke him, Mr. Gjema shoved him backward with both hands, knocking him to the floor and shattering his glasses.
Shortly after, Mr. Gjema was told his actions had endangered others and contributed to an unsafe workplace. He was immediately fired. Mr. Alcantara was only suspended.
Believing that his termination was wrongful and that Mercury's reliance on the incident to justify it was really a ruse to avoid paying him the severance guaranteed by his contract, Mr. Gjema sued the company.
Even though Mr. Gjema was wrong to shove another employee, Justice Perry Schulman of the Court of Queen's Bench of Manitoba found blame in how the employer handled the situation.
The judge rejected the company's defence that Mr. Gjema had physically assaulted another worker and found that Mercury had failed to consider the context before terminating a senior employee for misconduct.
Violence in the workplace should never be condoned, but the incident had to be put into context.
Mercury knew that Mr. Alcantara was difficult to get along with and had previously fought with other staff. The court was also troubled that he was the instigator of the incident and yet was not dismissed.
In the end, the judge ruled that Mercury's termination of Mr. Gjema's employment because of the incident was just a pretense to avoid paying him severance.
This case serves as a useful reminder that when it comes to employee discipline and dismissals, a gold standard of investigation is often required by the courts.
Gone are the days when an employer could cobble together a summary of what it thought transpired and expect its conclusions to stick, if tested.
Given the willingness of workers to challenge their summary dismissals, here are some practical suggestions for employers:
Perform a proper investigation
Mercury's failure at trial was as much about what it did not do as it was about what either man did. At no point before Mr. Gjema was dismissed did Mercury attempt to establish who initiated the confrontation. This point was obviously not lost at the trial, because it left the court with the impression that it really did not matter to the company who was at fault.
In any case of serious misconduct or allegations of fraud, employers must be able to demonstrate exactly what occurred and show that all of the circumstances were considered. In more serious cases, this could require a third-party investigation.
Consider all the facts
There are almost always mitigating circumstances. If the conduct is out of character, there is probably a reason. Find out what that reason is instead of learning about it in a lawsuit.
Have patience
Most employers tend to see their cases through rose-coloured glasses and are quick to rush to judgment, especially where there is a preferred outcome. This only makes it worse. Once an employer hits its breaking point, the company should slow down its decision-making process to cover all the bases, rather than speed it up. The legal onus is squarely on the employer to do so.
Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com
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