December 14, 2007

Xmas harassment -that’s not Rudolph’s nose!

Background
Robert had worked for a small firm of couriers for several years. He was well regarded by management and other staff, and his “life of the party” antics at various social club functions seemed to go down well with everybody.
Earlier in the year, he had separated from his partner of twenty years, and had become depressed and withdrawn. He still coped with his work, but many of the other staff felt a bit sorry for him and worried about him.

Trouble
The social club’s Xmas party was a separate function from the firm’s official Xmas party, and was held at a local restaurant, booked as a private function. Robert had “primed himself” with a few drinks beforehand to try and get in the mood for his “life of the party” role. Bad idea. He kept drinking and started to behave inappropriately, making sexual advances to some of the female staff and arguing with and abusing the boss. When he mounted the table to sing “Rudolph the Red Nosed Reindeer” while waving the end of a cocktail sausage through his fly, most people believed he had gone too far. He was bundled into a taxi and taken home.

More trouble
The next day Robert was given a letter summoning him to a disciplinary meeting to discuss his behavior at the social club function. The letter was quite specific about the things Robert had done, warned him that the matters were serious and could result in the loss of his employment, and invited him to bring a representative. The boss suggested that Robert take a few days special leave on full pay in the meantime to allow things to “cool down”. Robert was feeling very ashamed of himself and readily agreed.

Call an Advocate
Robert went home and called me, asking for support at the disciplinary meeting, and also asking me to investigate whether the boss could discipline him for bad behavior away from work at a private function at a restaurant.

Legal position
I had to tell Robert that the boss could discipline him for his behavior. For a long time it was uncertain what was “work business” and what was not until a Court of Appeal decision provided some certainty. The Court held that if a “nexus” of connection with work existed then the employer had a legitimate interest and could legitimately expect that staff would behave appropriately. A staff social club Xmas function certainly qualified, and the fact that the boss attended along with all the other staff added weight to this position.
The letter giving notice of the disciplinary meeting was a model of specificity and fairness, and the boss had discussed Robert’s special paid leave (effectively a suspension) and Robert had agreed, so there was no question of procedural deficiencies or an unfair process so far.

I considered whether the boss had discharged his duty in relation to ensuring host responsibility (food – not serving drinks to Robert while intoxicated, safe transport), but since it was a social club function there were questions about how far the boss’ responsibilites in that direction extended. The company certainly had policies prohibiting harassment. They had been well publicised, and training had been given.

First steps
I called the boss for a discussion on a “without prejudice” basis. The boss was keen to talk. He explained that Robert was a good worker and that everyone was sorry that things had gone too far. He said that he was “over a barrel” in that he had received a complaint from one of the women Robert had harassed, and that he had to act to protect the company.
I agreed that he clearly had to make a full investigation of the complaint, and that some sort of disciplinary action was probably inevitable , since there were nearly 20 witnesses to the facts.

Meeting
I attended the meeting to support Robert. The boss went through the complaint he had recieved from the staff member Robert had harassed. I pointed out that he should have made that complaint available to Robert along with the letter summoning him to the meeting. Robert admitted the offensive behavior (he didn’t have much option).
Then the boss went through the other points in his letter, including Robert abusing him, and the “Rudolf incident”. Robert said he was very sorry.
The boss sent us out while he decided whether his “investigation” had established misconduct on Robert’s part. It took him about 15 mins to decide that Robert was guillty of misconduct.
He didn’t invite us to comment on that finding before he announced his decision on the penalty. He should have. A fair process requires that the employee have a chance to comment on the finding before a penalty is decided, and a further chance to comment on the proposed penalty before it is actually imposed. The boss didnt give us a chance to comment on the penalty either. He issued a final written warning, and offered to pay for counselling for Robert to help him deal with his depression. Since we thought the penalty was very reasonable, we did not raise the deficiencies in the latter part of the disciplinary process. Robert resolved to take advantage of the boss’ offer of counselling, and promised not to drink at future staff functions.