I know this will come as a complete shock to those reading my blog, but I’m a public servant. (Just kidding, everyone who reads this knows that fact, it is usually pretty clear). What also becomes clear when you talk to me about HR or my job is that I’m a public admin geek. One of my favourite textbooks of undergrad, law school, or grad school was one that wasn’t on any of my course lists, but I bought as part of my research for an essay … the book is “Public Administration in Canada” by Kenneth Kernaghan and David Siegel.
I bought my copy back in 1990, the link takes you to a 3rd edition in 1995, and it is long out-of-print. Public admin textbooks are passé, it’s all digital now, plus more about a series of articles, short monographs, chapters on policy, etc. But it was my first real public admin text and I thought it was brilliant. Unlike anything I had studied, and exactly in my wheelhouse. I still own it actually. From time to time, I think, “Maybe I’ll write my own version someday”, create a PolyWogg’s guide to public admin. Then I think of how much work it would be and decide I’m just crazy.
Instead, I get my itch scratched in other ways. Like reading PSLREB decisions. For those not up on their geeky vernacular, that’s the Public Service Labour Relations and Employment Board tribunal that hears grievances and appeals from federal public service employees of violations of collective agreements, labour relations principles, or hiring legislation. Normally, these decisions are rendered and nobody notices except the people and departments involved. Sometimes it’s relatively mundane — someone was on travel for work, filed an overtime request, had it denied because they were claiming for being stuck in an airport somewhere, appealed internally, still denied, complained, got nowhere, filed a grievance, and voila, here they are at a tribunal.
Generally, there is a reason why things reach an actual tribunal; usually, one party is asking for something potentially unreasonable, has dug in their heels, and the other party isn’t giving in either. An impasse. Many complaints start up the chain, and either get abandoned or resolved long before they reach an actual tribunal. So when things DO reach a tribunal, there’s usually some interesting fact or principle at stake. Or, at least, interesting to the parties involved and public admin geeks like me.
This administrivia took the crazy train over the last two weeks with three decisions regarding terminations of employees that left me scratching my head. Two of them even made the Ottawa news quite extensively.
I need to digress for a moment here to talk about management’s responsibility. Normally, when someone violates rules that could be grounds for discipline, the response is pretty graduated. Verbal warnings, written warnings, suspensions, etc., and a host of other steps you can take long before deciding on termination. Escalation of penalties over time, often with remedial training to correct the behaviour. However, when the breach is severe, the manager needs to take three things into consideration when determining if a more aggressive response is appropriate:
- The seriousness of the breach;
- The likelihood of it re-occurring; and,
- Any mitigating factors that might have affected 1 or 2.
In two of the three of the following cases, the managers decided to terminate and the Board gave them their jobs back; in the other, management came up with what they thought was reasonable accommodation and the employee wouldn’t accept anything except what she specifically desired. In some cases, I’ve quickly grouped and summarized the details of the background as they don’t impact the case, but if you want the full Monty-version, the links are provided.
As an employee, I feel for all of them involved. I do. It all sucks. But that’s not what this post is about. This is about whether the Board’s decisions make sense from a management perspective, and I don’t think they do.
Decision #1 (Rahmani v. Deputy Head of the Department of Transport) outlined a case where you had two engineers working in close proximity to each other, one more senior than the other, and a deteriorating personal relationship over a period of time. According to the Board’s finding of fact, the junior one was becoming generally disgruntled and had a pretty standard leave pattern for people experiencing issues in the workplace — increasing sick leave, sometimes longer absences, etc. After one period of leave, the junior person returned to find out that the senior person had been promoted to an acting management position, making the slightly senior person now his boss. The more junior person wasn’t thrilled about it, and when the new boss came to see him about some overtime requests, he thought the new boss was abusing his authority. He went to complain to a bigger boss who wasn’t there, so instead, he went back to his new boss’s office. At this point, versions diverge, but the Board made it pretty clear that it felt in the altercation, the junior engineer struck/slapped his boss hard enough to knock his glasses off and hard enough for the people in an adjacent office to hear the slap. The boss left his office apparently in fear and ran to the Commissionaire’s office, and the slapper followed him. They were put in separate rooms, stories were confirmed, the slapper was suspended and they had some follow up meetings.
So, in this case, if I was the manager in charge, what would I have seen, based on the findings of fact by the Board?
First, there’s a physical assault on an employee. This is one of the most serious breaches in the workplace and needs an immediate and unequivocal resolution. Employees don’t simply “want” to be safe, they have the right to be safe from harm in the workplace. There’s no mention of the Department having called the police to report the assault, but it absolutely should have happened. Even without the victim’s consent, there should have been a police report filed.
Second, the likelihood of it re-occurring depends often on three lines of evidence. First and foremost, is the person showing accountability for their actions — are they showing remorse? Secondly, is there a systemic response that will help, such as additional training? Is it something that is “correctable” behaviour? Third, perhaps it was a one-time situation that couldn’t re-occur, something resembling a unicorn of situations, a “black swan” that couldn’t have been predicted. In this case, the Board found that the person hadn’t been remorseful up until the point of actually being fired, but was only remorseful afterwards.
Third, any mitigating factors. According to the tribunal, after the fact, the slapper sought professional help and had a doctor’s note saying that although they weren’t treating him at the time of the incident, there were apparent signs of mental health issues present, and if they had been present at the time of the incident, they could have contributed to the incident. In the end, the tribunal found that mental health had been a factor, the management hadn’t taken that into account, and thus termination was too severe a punishment.
This is where, as a manager, I see the crazy train pulling out of the station. If I’m the manager, I’ve got doctors saying “maybe, could, possible, contribution” looking back vs. an employee showing no remorse at all and a breach so severe that it could have generated a police response. Of course, I have to terminate. I have no choice, it’s the only way to protect the other employees. The incident is a severe breach, at a high risk of re-occurring, and the only mitigating factors are “possibles” and “maybes”. To add insult to injury, literally, the Board not only reinstated the employee, but they also gave him $25K for the discriminatory termination.
Decision #2 (Rodrigue vs. Deputy Head of Veteran’s Affairs) involves a case that follows a similar pattern to the above — a deteriorating work relationship and an incident leading to termination. Except, in this case, it involves the privacy of client information. The grievor seemed to have a deteriorating work relationship with her boss, some sick leave for stress, etc. vs. performance complaints by the boss. There seems to have been some issue with someone’s file, the grievor felt that the boss didn’t approve things in a timely manner, a client ended up in the hospital, and the griever went on leave having been stressed by the incident. She filed a claim for workman’s compensation and was denied as it wasn’t a workplace “accident”.
Now, as a manager, I’ll confess that this situation is a giant pile of excrement, a shit-storm for everyone involved. The employee’s in a bad situation, the manager’s in a bad situation, the fellow employees caught in the vortex are suffering. It’s a lose-lose-lose situation for everyone. And often it is so far down the rabbit-hole, people have entrenched positions, anger, resentment, etc., that everything someone does is viewed as a conspiracy against them. By the time it gets this far, there is probably only one solution — separate the employee from that situation, since moving the manager isn’t going to change relationships with coworkers. I don’t mean fire them, I mean find some other job they can do that starts as fresh as possible. That didn’t happen here. And I wonder if that contributed to the subsequent actions by the employee.
In order to appeal the denied compensation claim, the grievor asked for copies of some work-related documents that showed timelines with her boss’s actions, etc. Essentially she wanted to show that her boss didn’t approve things in a timely manner, leading to the client being hospitalized and her being stressed enough to leave. Except the documents had client information on them. For whatever reason, and I suspect that the prior relationship had a lot to do with it, the office wasn’t giving her or the union rep much response. When the union rep faxed a formal request, a different manager told them it would have to go to the ATIP office and be redacted, it couldn’t just be shared with them since it had client info. Unfortunately, this didn’t meet the timelines of the appeal. So the “incident” that precipitated the termination began.
The grievor went into the building, opened up some of her boxed up documents, found copies of the files, made copies of the files, and gave them to the compensation appeal hearing. Unredacted. With the client information showing on the documents. There’s no doubt she did it, she readily admitted it and the employer received copies at the meeting.
This is a clear breach of the Privacy Act, legislation passed by Parliament that says how all government departments will protect the information it holds on Canadians. It is referenced in letters of offer, the Code of Values and Ethics of all Departments, because the Government has to take it seriously, as do its employees. It says, very clearly, that a release of private info can ONLY be done if the person consents or fits an enumerated list of exceptions (none of which apply here).
She knew she wasn’t allowed to hand over the info, she knew it had to be redacted (she had even already offered to redact it herself), she took copies out of the office (a breach in and of itself), and she gave it to a third party (the compensation board) to support her own application for compensation. For those playing along with home, this is called an intentional, knowing breach for personal gain.
Let’s go back now to being a manager with this as your case study. An intentional, knowing breach for personal gain. Wow. That’s an unusual one. Most departments are trying to come up with rules and guidelines that would allow them to fire employees for an ACCIDENTAL breach due to negligent performance of their duties, and here you have someone who knew it was wrong and intentionally did it anyway, and it was also for personal gain (the compensation board’s money).
Definitely a serious breach — in addition to Parliament passing legislation to say it was important, in addition to having an entire Office of the Privacy Commissioner, in addition to penalties in the act for obstructing the Privacy Commissioner, in addition to the letters of offer, mandatory training for all employees, reminders on your computer screens, and inclusion in your LETTER OF OFFER that outlined the terms of your employment, it also is in every Deputy Head’s mandate letter and delegated responsibilities.
The tribunal ignored all of this, it’s pretty clear, in the judgement. In fact, they said the Department hadn’t been consistent previously — which if true is likely because recent breaches have made Departments much more aware, and they’re cracking down. The previous examples referenced were also breaches and should have been treated as such. The Department took this breach so seriously they reported it to the Privacy Commissioner AND notified the two clients whose info had been released. Which, by the way, now means those two individuals can sue the government for not protecting their info. Her actions gave rise to grounds for a lawsuit, that’s how serious it is. Totally ignored by the Board.
Moving on to the question of correctable behaviour, the management held a meeting with her and her union rep to discuss the breach. The rep described it as a “trap”, which of course it would seem like — she had intentionally breached the Privacy Act, and the meeting was to find out if there were (a) signs the behaviour could be corrected even though she knew it was wrong and did it anyway and (b) any mitigating factors. When they asked her at the meeting if she would do it again, or could they train her not to, she exploded at them, told them she was fully justified in what she had done, and of course, she would do it again. They took a break from the meeting, she came back in and cried crocodile tears saying she needed more training and she would mend her ways. In other words, the union rep told her she just gave them grounds to terminate her, and she suddenly found contrition. Not very convincing, if I’m the manager. No evidence she felt contrition at all, nor that it was actually going to be correctable behaviour. What training could she get? She knew it was wrong in the first place and still did it. And had just said that she’d do it again.
Now as a manager, back up a paragraph or two where I mention that Deputy Heads are told to protect their info, it’s incredibly serious. And you have an employee who breached it for personal gain and said they would do it again. Let’s move on to mitigating factors.
Generally speaking, there is only one, and it’s the shit-storm that preceded the incidents. This works both ways — signs of stress, signs of poor performance, which came first? She was already receiving remedial help with her performance prior to the incident. If it didn’t work then, why would it work now?
If I was the manager, I would feel like my hands were tied. Severe breach. Uncorrectable. Not the first problem. Terminate.
The board felt that termination was too harsh a penalty and reinstated the employee.
Decision 3 (Emond vs. Treasury Board for Parole Board of Canada) is the one that got the most press, but honestly, it was not about the substance of the issue but the titillation factor of the shit-storm that preceded the case.
Here are the nuts-and-bolts of the shit-storm. Emond had a co-worker identified as Mr. X only who basically drove people around him crazy. Noisy, socially awkward, insensitive to a cubicle-work environment. The big titillating item in the news was that he had smelly feet and washed his feet with vinegar in his cubicle. Emond sat next to him, and it drove her up the wall. Shit-storms often happen in this type of situation, and if it was outside the office, you would see it show up in hundreds of thousands of cases between neighbours who didn’t get along, and things escalated to the point where lawyers were involved. Sometimes it’s the neighbour angry about noise, sometimes it’s about road rage. Often relatively stupid things that people outside the situation look at and have a couple of reactions — first, why didn’t they just talk to each other and find a compromise? Or second, is party 1 a nutbar or is party 2 a busybody or overly sensitive? It’s irrelevant to the case, but it goes to the heart of the original problem.
During a particularly bad day, Emond confronted Mr. X in frustration about his noise, he seems to have taken it badly, perhaps even to have threatened her (not a fact determined by the tribunal), and she wanted to work away from him after that. She moved to a different spot on the floor, problem potentially solved according to management. And in fact, it was generally treated as a personality conflict that could be resolved by separating them. Not so.
They still saw each other, and it actually escalated to the point where he claimed she was harassing him including having called him a nasty name, which was upheld by an internal investigation and she was reprimanded. While the managers found no evidence at all that he posed a threat to anyone, she decided that she wasn’t safe and wanted to be away from him based on his earlier threat. Bearing in mind she has been on the same floor for him for some time afterwards, no issues. Management offered to accommodate her by moving her to a secure floor in the building, only executives have keys, and she’d be able to work in peace. This is a pretty HUGE accommodation offer. She said it was insufficient. She wanted to work in another building entirely. Management said no, she took leave, blah blah blah, time for the Board to resolve.
Now let’s play manager-for-a-day. You have a shit-storm that leads to two people having to be moved apart. You’re not running a daycare, you expect people to be professional, but still, it happens. Mediation early might have helped, maybe not. Separation earlier might have helped, maybe not. Even when separated, she continued to harass him, despite her later-reported fear of him. You finally come up with a solution whereby her fears, which her psychiatrist says is based on her perceptions only, will be allayed by giving her a private cubicle that requires two key cards to get anywhere near her, and she deems it unsatisfactory. She wants a new building. She asks for assignments to Montreal to be with a husband, then a permanent transfer. When told what the procedure is to do that, she chooses not to do it. Her psychiatrist says she needs a gradual return to work, but instead, she goes back to work full-time at her own choice.
As a manager, she seems to be picking and choosing the accommodation options that are most attractive to her, without considering any of the accommodation options that are presented to her. They’re all insufficient unless she gets exactly what she wants. That’s not how accommodation works.
Now, when it became apparent that her doctor and the psychiatrist were not informed by her that she had been found to be harassing the other person (an act inconsistent with her supposed fear), that the other floors were secure, any of the other options presented, or that her behaviour regarding her accommodation needs was inconsistent with respect to their diagnoses, the managers SHOULD have requested an independent analysis by Health Canada that (a) she was indeed ready to return to work and (b) the accommodations requested were appropriate. This is part of the manager’s duty in fact. That doesn’t seem to have happened here.
And, quite frankly, the Board should have requested the same. Instead, the Board basically said that her perception of risk of violence by Mr. X justified her being accommodated at another building, reinstated her, and gave her back pay.
So, I’m a manager, what do I take from this? On a bad day, one might argue that:
- It’s okay if you punch your boss, you don’t even have to say you’re sorry, as long as you claim later that you were having a mental health issue at the time and get a doctor to back you up that it “could have” contributed to it…not only is it okay, we’ll give you $25K for doing it;
- If you intentionally breach the Privacy Act for personal gain, as long as you cry crocodile tears that you need more training, you can keep your job even though you opened the government up to two possible lawsuits; and,
- If a crazy coworker makes you take a ride on the crazy train yourself, justified or not, you can get them to move you to another building regardless of what else they offer you in accommodation.
Alternatively, if you’re being really cynical, if you just look at the issue of workplace violence, you have actual violence not being grounds for dismissal but even a perceived fear of violence is enough to require the employer to move you to another building.
Or alternatively, if you’re really being disrespectful to the huge shit-storms they were all part of, you might argue that if you are crazy enough to punch someone, crazy enough to intentionally and knowingly breach the Privacy Act, and crazy enough to harass someone who you are supposedly deathly afraid of, no worries, the Board will protect you, even from yourself.
Or, in the end, do I simply hope that the Department’s try to steer the crazy train towards the court system and appeal these decisions that shift the power so far away from management that they can’t do anything except what the employee asks?