An employer receives a complaint about the conduct of an employee. It decides it must investigate. What happens to the employee while the investigation is going on? This is a difficult question. To answer it, employers need to consider a myriad of factors, including whether having the employee remain in the workplace leads to additional workplace problems and increases the employer's legal risk, or whether suspending an employee makes it practically impossible for them to return to the workplace after the end of the investigation. What impact a suspension will have on an employee's reputation, as well as what is an overall fair arrangement in light of all the circumstances, are also considerations.
A recent case from the Superior Court of Ontario, Pierro v. The Hospital for Sick Children, 2016 ONSC 2987 (CanLII), tackles this issue head on.
The employee in question was a doctor who was head of a division in the Hospital. He had supervisory authority over a number of employees. The Hospital received a number of complaints alleging workplace misconduct by the doctor that were serious enough to trigger an internal investigation.
According to the decision, the investigation brought to light a large number of allegations about the doctor's behaviour, which included:
- Throwing objects, in one case with such force that the object broke;
- Screaming and yelling at administrative employees, a staff surgeon, and nurses, both in person and over the phone;
- Snapping at and embarrassing people at meetings, including questioning individuals' integrity in a meeting setting in a hostile manner;
- Needlessly reminding all parties in the room that he is the Division Head;
- Calling people incompetent for not following his instructions despite being told that he is asking them to contravene Hospital policy;
- Barging into peoples' offices while they are in private meetings and wanting his needs attended to immediately;
- Using sarcasm and a high level of impatience in discussions with staff in open settings, private meetings, and in any group meetings;
- Threatening to fire staff in a very loud and threatening tone if they do not do certain things that he wants; and
- Bullying junior-level staff to contravene hospital practices.
In addition, the doctor's assistant provided a statement that spoke to her day-to-day dealings with him, and "added credence to the allegations".
As a result of its own investigation, the Hospital concluded that an independent and external investigation was warranted. It so advised the doctor, and told him that he would have an opportunity to respond to the allegations. The Hospital also informed the doctor that he would be placed on a suspension once the investigation commenced. The terms of the suspension were that he would receive full pay and continue his clinical, research and teaching roles, and he would continue to see his patients. However, his office would be moved to outside the division in which he worked and he would have no access to it until the investigation was completed, which was estimated to be three to four weeks.
The doctor disputed that any of the allegations were genuine, and asserted that there was a "thinly veiled scheme" to drive him out of the Hospital. He hired counsel, who brought an injunction application to prevent the Hospital from implementing the suspension on the basis that the suspension was unnecessary, and that once the news of it spread, the doctor's reputation in the medical world would suffer irreparable damage. The Hospital maintained that the suspension was necessary so that an independent and untainted investigation could take place. Moreover, it argued that the suspension protected patient safety by ensuring the avoidance of conflict within the division in which the doctor worked, and that minimal damage would occur to the doctor's reputation.
The injunction application failed.
In response to the doctor's concerns vis--vis irreparable harm, the Court concluded that although his reputation would likely be harmed, it would be as a result of the allegations themselves, not the suspension. The Court also acknowledged that if it was wrong and he did suffer harm, the Hospital would be in a position to compensate him monetarily at the conclusion of the investigation. In considering who would suffer the greatest harm, the Court found that the disruption that might occur should the injunction be granted, would likely adversely affect the care of patients. In contrast, if the injunction were not granted, the hardship suffered by the doctor would be minimal.
Costs against the doctor were assessed at $15,000.
What is "Workplace Harassment"? The allegations made against the doctor in this case have not been proven in court. However, as enumerated by the Hospital and as set out in the decision, they are, in our opinion, examples of what properly constitutes workplace harassment, if they are true. We understand that employers still struggle with this concept, which is why we have quoted the allegations extensively here.
The Power to Suspend During an Investigation
This case reaffirms the principle that employers have an implied right to suspend an employee because of acts of which the employee has been accused subject to a number of limitations. The employer must show that the suspension is:
- Necessary to protect legitimate business interests;
- Guided by good faith and the duty to act fairly;
- Imposed for a short period of time that is fixed or can be fixed; and
- A paid suspension, subject to exceptional circumstances.
Tailor the Terms of the Suspension It is quite evident from the decision that the Hospital reviewed the legal requirements and carefully considered the terms under which the doctor was suspended. It did not do more than what was necessary to support the investigation. In allowing the doctor to continue his research and to see patients, the Hospital allowed him to continue working, albeit in a modified form. This was not heavy handed, and appeared to be a fair arrangement considering all of the circumstances.
Consider the Legal Strategy If the doctor was concerned about damage to his reputation, we are left wondering why an injunction was brought in the first place. Surely a public decision, as reported in the mainstream media, (as has now occurred), could have been anticipated. If the aim was to protect the applicant's reputation, wasn't a less public airing preferable?