Issues with Workplace Investigations and Codes of Conduct
Yes, an employee can be fired for an office romance. However, this may not be the case in every instance.
This issue was in the news recently as various news sources have reported that the former chief financial officer of the Royal Bank of Canada, Nadine Ahn (“Ms. Ahn”), is suing the bank for wrongful dismissal. Ms. Ahn had been fired for cause as it was alleged by the bank that she had an office romance with another employee who was her subordinate, and she had also demonstrated preferential treatment to that employee.
Ms. Ahn denies these allegations and claims that there was a lack of supporting evidence for those allegations by the bank. She states that there was no romance and the relationship with the other employee was simply one of friendship. She also claims that the Royal Bank conducted a flawed investigation which resulted in her reputation being damaged. The other employee, Ken Mason, was also fired for cause by the bank and has brought his own wrongful dismissal claim against the Royal Bank of Canada.
It is true that in certain cases of serious misconduct (which can include cases of an “office romance”), an employer could fire an employee for cause. When an employee is fired for cause, the employee is not entitled to any notice of dismissal nor a termination or severance package. However, when an employee is fired for cause, they have the option to sue the employer for wrongful dismissal.
In recent years employers are more inclined to fire employees for cause when it comes to “office romances” or employees who engage in ostensible romantic activity with another employee in the workplace. Employers have discouraged employees from engaging in romances, dating, flirting, etc. with other employees as those actions between employees can result in serious liability for the employer. As such, employers have put in place, as it seems the Royal Bank of Canada has done, certain workplace polices or codes of conduct that speak to these issues. A typical workplace policy may include such things as what constitutes an inappropriately intimate relationship or romantic behaviours between employees, how this creates a conflict of interest and what the consequences of these behaviours would be such as setting out how the employer’s policy would be enforced.
Most importantly, the workplace policy needs to have clear terms about workplace harassment when discussing “office romances.” This is because in many instances, workplace harassment issues and “office romances” overlap especially where the “office romance” involves one employee who is a superior and the other who is subordinate. The workplace policy should set out how an employee goes about making a complaint about the actions of another employee and what procedures are in place to investigate these complaints. Further, an investigation must be conducted to determine if the employee’s actions breached the workplace policy. Employers need to act with caution in making sure that the investigation is done in a fair and impartial manner.
How the employer conducts a workplace investigation can vary depending on a wide array of factors such as the location or size of the workplace or the type of complaint. However, the investigation regardless of whether it is conducted by a third party or by the employer should always contain two basic parts. The first is an information-gathering phase and the second is the report which will contain the results of the information-gathering phase. In the information-gathering phase, the investigator may use a variety of tools to obtain information such as in-person interviews of witnesses or the review of documentary evidence. There also needs to be procedural fairness with respect to how the investigation is conducted.
There are some issues that may occur during the course of the investigation that may “taint” the investigation’s outcome. The employer should ensure that they are forthright about how the investigation will be conducted. They should not make any false representations to the employee about such things as how evidence will be gathered or how interviews will be conducted. The employer should also attempt to keep the investigation as confidential as possible, and the scope of the investigation should be limited to the issues of misconduct at hand and not branch out into other areas of concern.
Employers can sometimes be predisposed towards a certain outcome or result of the investigation. Employers can often have a “hunch” about a particular employee’s misconduct but, in legal and ethical terms, a “hunch” is not enough and will not constitute a proper investigation. Further, employers should never attempt to coerce or intimidate the employee who is the subject of the investigation or any witnesses who are interviewed during the course of the investigation. Sometimes employers have inappropriately exerted pressure so that these individuals will change their answer(s) to get the particular answer(s) that the employer wants to hear.
How can Zeilikman Law help?
Whether you are an employee engaged in an office romance or an employer who is conducting a workplace investigation relating to an office romance, employment lawyers like the ones at Zeilikman Law, can assist you in a number of ways.
For instance, an employment lawyer can review the employee’s employment contract or agreement or employer’s workplace policy or code of conduct to determine if the employer followed proper investigative procedures. In addition, the employment lawyer can also review the facts of the matter as a whole and determine if the employee has a case for a wrongful dismissal claim and whether the conduct amounts to cause at common law and statutorily.
