In its recent decision in Diamantopoulos v. KPMG LLP, the Ontario Superior Court of Justice applauded the conduct of KPMG in managing (and ultimately terminating) an employment relationship involving reports of workplace violence and allegations of workplace harassment, discipline of the complainant employee for unrelated workplace behaviour, and accommodation of that employee’s subsequent approved and unapproved disability-related absences.
Christina Diamantopoulos was a staff accountant with KPMG. Over the course of her ten years of employment, she received above average performance reviews on account of the quality of her work. However, the employment relationship was not without its challenges, including:
- Personality conflict and complaint of workplace harassment: Ms. Diamantopoulos experienced a personality conflict with a partner of the firm. From the evidence, it appeared that the partner had, on several occasions, attempted to work with Ms. Diamantopoulos to develop business for the firm, but that she had viewed those efforts as an attempt to undercut her and compete with her to her detriment and, ultimately, as workplace harassment. Therefore, Ms. Diamantopoulos refused to assist with those business development efforts. The resulting animosity led to confrontations in which Ms. Diamantopoulos had become aggressive and rude. KPMG management and human resources were informed, and had, on several occasions, intervened. After the latest incident, the partner prepared a memorandum summarizing the circumstances surrounding the incident, and recommending that Ms. Diamantopoulos be terminated.
- Inappropriate behaviour: In addition to the issues between Ms. Diamantopoulos and the partner, there was at least one other instance in which Ms. Diamantopoulos was notified that her behaviour in the workplace was unacceptable.
“After her termination, Ms. Diamantopoulos commenced an action against KPMG, claiming damages for wrongful dismissal, breach of contract, negligence, intentional infliction of mental distress, and aggravated and punitive damages.”
- Workplace Violence: In 1998, Ms. Diamantopoulos’ received a voicemail message at work containing obscene and antagonistic comments, and threats of bodily harm and death. KPMG immediately conducted an investigation, but the person responsible was never identified. However, in light of that incident, KPMG accommodated her subsequent security requests, including providing a telephone equipped with Caller ID.
- Disability management: In November of 1999, KPMG held a behavioural meeting with Ms. Diamantopoulos. Ms. Diamantopoulos did not return to work after that meeting, and was subsequently diagnosed with adjustment disorder with depression and anxiety. Short-term disability payments were made by KPMG, and her salary was continued for a further period while her application for long-term disability benefits was adjudicated. In response to the denial of LTD benefits, KPMG requested a meeting with Ms. Diamantopoulos to discuss return to work. Ms. Diamantopoulos refused to attend and, as a result, KPMG terminated her employment on a “without cause” basis. During the statutory notice period, Ms. Diamantopoulos was diagnosed with breast cancer; and KPMG responded by adjusting the termination package to allow her to apply for STD/LTD benefits.
After her termination, Ms. Diamantopoulos commenced an action against KPMG, claiming damages for wrongful dismissal, breach of contract, negligence, intentional infliction of mental distress, and aggravated and punitive damages.
In the Court’s disposition, Justice Stewart concluded that “[t]he entire handling of [Ms. Diamantopoulos’] dismissal was undertaken properly and in good faith”, and that KPMG’s most recent performance management efforts were “intended to be a humane and professional way to communicate a reasonable message to an employee who needed and deserved such admonition in order to keep her within the KPMG organization by modifying her inappropriate behavior.”
Ultimately, Ms. Diamantopoulos was only successful on her claim for wrongful dismissal, for which the Court awarded her ten (10) months’ pay in lieu of notice. All other claims were dismissed.
This decision reinforces several key practices for employers:
- Consult independent/impartial personnel (i.e. Human Resources or Legal Counsel) before making a discipline or termination decision: Decision-makers who are directly involved in the impugned conduct that might trigger discipline or termination can be perceived to be partial or biased, and may choose a penalty that is disproportional to that conduct. A third- party with past experience interpreting and applying the employer’s progressive discipline policy may be helpful in providing an objective opinion regarding the appropriate penalty.
- Investigate all workplace harassment and/or workplace violence complaints, and implement any resulting recommendations: While prevention is optimal, incidents of workplace harassment or workplace violence may arise, or situations may occur, in which an employee genuinely feels that they have been the subject of workplace harassment or workplace violence. Those circumstances should be investigated by the employer as soon as they become known to the employer in order to improve workplace health and safety and to avoid allegations of bad faith, impropriety and/or negligence.
- Keep an open mind…decisions can be changed: Whenever new information is received (particularly after making a significant decision like terminating the employment relationship), employers should reconsider their decision in light of that new information. For example, in Diamantopoulos, KPMG received new medical information from the employee after terminating her employment but, in order to allow her to receive additional insurance benefits, KPMG restructured the termination package.
- Infuse the management of the employee and employment relationship with humanity and professionalism: There is something to be said for the adage: “treat others as you would like to be treated.” Not only is that the right thing to do, but, as illustrated in Diamantopoulos, it will also serve to protect the employer’s legal interests.