In a recent decision, Piresferreira v. Bell Mobility Inc., 2008 CanLII 67418 (Ont. S.C.J.), a Court in Ontario highlighted the mistakes that can be made when conducting a workplace investigation and the significant costs that result when things go wrong.
The Abusive Boss
In Piresferreira v. Bell Mobility, Marta Piresferreira was an exemplary sales associate who (for reasons the Court acknowledged were out of her control) was having problems meeting her sales quota. Her manager Richard Ayotte became increasingly frustrated at Piresferreira’s perceived failure to implement strategies he had recommended to her to improve her performance.
When dealing with his team, Ayotte was known to be abusive and would frequently swear and use phrases such as “Jesus Christ” or “God damn it”. He also would yell and swear at this team when the team was below target. Ayotte considered this to be an effective and acceptable strategy to get people motivated.
Ayotte’s relationship with Piresferreira deteriorated. One morning, things came to a head, when Ms. Piresferreira and Ayotte had an argument about a work issue. Ayotte yelled at her in front of others, and accused her of not knowing what she was talking about. Piresferreira held her Blackberry up to Ayotte’s face to show him a chain of emails by way of reply. Ayotte said he wasn’t interested, glared at her, and then pushed her out of anger and frustration. Piresferreira told Ayotte that he shouldn’t have done that. He told her to “get the hell out of his office”. As a strategy to ward off any complaint from Piresferreira, Ayotte then put her on a performance improvement plan immediately after the incident.
Piresferreira felt violated and shortly afterward was diagnosed with post-traumatic stress disorder. She was unable to return to work. She lodged a formal complaint against Ayotte with human resources.
Mistakes made in the Investigation Process
Notwithstanding the severity of the complaint, Bell’s investigation consisted of Ayotte’s supervisor asking him a number of questions as to what occurred. The supervisor did not interview Piresferreira, nor did he interview anyone else who reported to Ayotte. The Court concluded that this was ultimately an exercise in “damage control”, as opposed to a thorough fact finding exercise.
The Court was very concerned about Bell’s conduct following the conclusion of the investigation. First, while it did accept that Ayotte had pushed Piresferreira, it downplayed the severity of this behavior and simply stated that Ayotte had acted “inappropriately” and that such behaviour was “unacceptable.”While Ayotte was initially referred to counseling, he reported that he did not need to continue after he completed the first session. This was accepted by Bell.
Most seriously, Piresferreira was placed on a performance improvement plan, which had at least the appearance of being a reprisal for filing her complaint.
Bell’s Legal Liability
As a result of the manner Piresferreira had been treated by Ayotte, as well as the flawed investigation Bell conducted, the Court concluded that Bell had not lived up to its obligation to treat Piresferreira with civility, decency, respect and dignity. As a result, the Court held both Bell and Ayotte liable for damages for assault and battery, as well as intentional infliction of emotional distress, mental suffering, nervous shock and/or psycho-traumatic disability. The Court also concluded that Ms. Piresferreira had been constructively dismissed. In total, Ms. Piresferreira was awarded more than $600,000 in damages.
WHAT CAN WE LEARN FROM PIRESFERREIRA?
- Employers must be prepared to conduct workplace investigations in a thorough and fair manner. This means interviewing complainants to obtain the full picture of their complaint, interviewing all available witnesses, as well as the respondent. Employers who take shortcuts in this process will be held legally accountable for a flawed process.
- If your investigation is being conducted by someone within your organization, as opposed to an external investigator, be aware of the impact of conscious and unconscious bias. Our reading of Piresferreira suggests that the objectivity of the manager who conducted the investigation may have been clouded by the relationship he had with Ayotte in that he based his conclusions almost exclusively on information obtained from him.
- Beware of actions taken at the end of an investigation that are or appear to be retaliatory. In this case, the fact that the complaining employee was placed on a performance improvement plan, showed remarkably bad judgment on the part of Bell, and did contribute to undermining the legitimacy of the investigation process.
- Make sure that the people who conduct investigations within your organization understand the seriousness of the task imposed on them, and the possible legal ramifications if they do a lackluster job.