Special note to BC readers:
If this subject is of interest to you, you may wish attend one of our related workshops in BC. Some spots are still open for the following sessions – we recommend registering soon. We hope to see you there.
- Bystander Intervention Training – May 23, 2018
Learn how to enable & empower employees to help flag and intervene in issues, instead of being passive witnesses.
- Basic Workplace Investigation Techniques & Report Writing Workshop – June 5-7, 2018
Learn how to respond, investigate, and report on workplace complaints – legally and correctly.
Manak v. Worker’s Compensation Board of British Columbia, a February 2018 decision from the British Columbia Supreme Court, sets out the relationship between a misconduct investigation, and an employer’s ability to terminate an employee for just cause.
Here are the facts according to the decision: Ms. Manak was a Client Services Manager in the Hearing Loss Section of WorkSafe BC’s Long-Term Disability Department. She made those who reported to her uncomfortable every time she:
- discussed planned disciplinary meetings with employees who didn’t need to know about the planned meetings;
- gave an employee advanced notice that one of their colleagues was going to be fired;
- divulged reasons for suspensions and firings to employees who didn’t need to know; and
- shared information about claims for workers compensation submitted by staff of WorkSafe BC.
WorkSafe BC found out about this behaviour because one of Ms. Manak’s direct reports expressed her discomfort to another manager, who in turn reported the information to Ms. Manak’s superior who initiated a workplace investigation. The steps taken in the workplace investigation are set out in the case and are illustrative of the challenges of these types of cases, and what can be done to overcome them.
The Court heard at trial that Ms. Manak’s superior, Mr. Kevin Molnar, met with the initial complainant to understand the facts. He also worked with Human Resources to undertake the investigation. Initially, because Ms. Manak was liked by her staff, there was a reluctance on the part of the complainant to speak to Mr. Molnar and Human Resources because the complainant thought it would get Ms. Manak in trouble. Once the initial information received was confirmed and reduced to writing, a meeting with Ms. Manak took place. At this initial meeting, Ms. Manak denied sharing information in breach of WorkSafe BC’s Standards of Conduct, Undertaking of Secrecy and annual Ethics Declaration. It was at this stage of the investigation that Ms. Manak was suspended with pay.
Considering Ms. Manak’s denial and her suggestion that her staff might be saying untrue things about her because they were upset “due to technology issues, departmental end-to-end reviews, resource shortages, and a lack of trust in management”, Mr. Molnar and Human Resources continued their investigation. A second complainant, a recently retired employee, was interviewed. The consistency of the allegations between the two complainants led to a decision by Human Resources not to conduct further complainant interviews. Additional discussions then took place with Ms. Manak. During one of these discussions Ms. Manak admitted certain conduct, explaining that it was an inadvertent slip “made due to the stress of her staff trying to talk to her about other matters, and that she needed to make it clear to them that she was too busy to attend to their issues.”
Shortly after that partial admission, Mr. Molnar and Human Resources met with Ms. Manak in person and advised her that they had concluded that:
- she had breached WorkSafe BC’s Standards of Conduct regarding confidentiality of information;
- she had not responded accurately when questioned about her conduct;
- she was found to be untrustworthy and not to be credible, and therefore Mr. Molnar could no longer work with her; and
- she was bring terminated for just cause and without any severance; however, given that the plaintiff had worked at WorkSafe BC for 36 years, she was being given the option to retire.
Ms. Manak accepted the offer to retire and signed a release. She then commenced legal action, including a challenge to the conclusions that she breached WorkSafe BC’s Standards of Conduct. The trial judge reached the same findings of fact as the workplace investigation after hearing evidence consistent with the information gathered in the investigation and making similar findings of credibility. Therefore, much of the legal analysis in the decision considers whether termination for cause was appropriate. On this question, the judge concluded at paragraph 77, with reference to McKinley v. BC Tel, 2001 SCC 38, that:
the defendant has met its burden of showing just cause in this case, applying the contextual approach required by McKinley at para. 5. No individual incident may have been sufficient to justify dismissal. But the cumulative effect of all of the incidents found to have occurred suggests a manager out of her depth, reacting to her stress by making an array of improper disclosures, in a misguided effort to obtain support from, or simply to be liked by, her subordinates.
Allegations that may be breaches of an employer’s code of conduct, like the ones in this February 2018 decision, should be investigated because a fair, timely, thorough and confidential investigation:
- ensures that all the relevant facts and documents are gathered;
- allows the employer to document the steps taken to understand the problematic conduct;
- offers the employee a fair process in which he or she can respond to those allegations, including any mitigating factors of which the employer should be aware;
- signal to the organization that adhering to the code of conduct is important and that it takes allegations of breaches seriously;
- can inform remedial actions taken to correct the behaviour or terminate the employee as appropriate; and
- from the employer’s perspective, provide support for a decision to terminate should the matter end up before a court.
About the Author
Fiona McFarlane heads our Vancouver practice. At Rubin Thomlinson, Fiona conducts workplace investigations into allegations of harassment and workplace violence, code of conduct violations, bullying, poisoned work environments, privacy breaches and other problematic workplace behaviour.