In the recent case of Van Wyngaarden v Thumper Massager Inc., the Ontario Divisional Court confirmed that unless a dismissal is in bad faith, an employer is entitled to dismiss an employee during the probationary period without cause and without notice.
Valentine’s Day is fast approaching, and we will soon start to see flowers and other tokens of affection popping up in the workplace. This can be a joyful time filled with expressions of love, but it also causes employers to tense up and fear the worst. Even before the #metoo movement, employers were scared of inappropriate relationships in the workplace. Now, they are terrified of a sexual harassment scandal. In some cases, their knee-jerk reaction will be to impose a non-fraternization policy, banning relationships even though there there is no real need to do so.
Employers will never be able to stop employees from having relationships, and there is no point in trying to do so. What they can and should do is address the issues that those relationships might result in, such as conflicts of interest and concerns of harassment. Particularly in the era of #metoo, employers cannot risk a harassment scandal.
You Can’t Ban Relationships
We spend a tremendous amount of our time at work, and in many cases, spend more time with our work family than anyone else. So it is not surprising that friendships and romance often develop. Year after year, surveys show that a tremendous number of workers have had personal relationships with their colleagues. This may be anything from a one-time hookup to marriage, or a platonic but close friendship. There are also workplaces with multiple family members, including parents and children and siblings.
Is There Reason for Concern?
A personal or intimate relationship between two employees of an organization should not, in and of itself, cause any concern for the employer. This is true whether we are talking about a romance, physical relationship, close friendship, or family relationship.
Conflict of Interest
Having said that, interpersonal relationships between staff can create issues that must be addressed. The most common one is conflict of interest, and this will apply any time there is a relationship between between a supervisor or manager and their subordinate. Although the employees may claim that they will conduct themselves professionally while at work, and may have every intention of doing so, the reality is that such a relationship is bound to create issues. You cannot have someone control the compensation, workload and/or career path of someone they have a personal or intimate relationship with. Similarly, you cannot allow one party to such a relationship to approve the expenses of the other. I have seen circumstances where romantic dinners were “approved” as legitimate business expenses by the other party to the relationship.
The other issue that usually arises where an employee and their subordinate have a personal relationship is that other employees will become resentful. They may believe that their colleague is getting preferential treatment, a lighter workload, etc. Even if that is not true, it will impact the work environment and hurt morale.
What to do
Employers do not need to have anti-fraternization policies, but do need to have clear policies in place to address such conflicts of interest. In addition to setting out the types of circumstances that will constitute such a conflict, employees should be clearly advised that must report such conflicts immediately, and that failure to do so will result in discipline, which can include dismissal. There have been cases where summary dismissal has been upheld by the courts when employees failed to disclose conflicts of interest due to personal relationships, particularly when they were confronted about the suspicions and denied that there was any relationship.
If an employee discloses an interpersonal relationship that could create a conflict of interest, the employer should speak with both employees involved to ascertain
- that there is no harassment and that it is truly a consensual relationship, and
- how the conflict can be removed.
On the first point, when there is an imbalance of power, there is always the potential for abuse. The subordinate may feel pressured to comply even they are not truly willing, fearing that they may lose their job if they don’t. And unfortunately, sometimes we see false allegations of harassment, often after the relationship has ended and one party either feels spurned, or resentful, or has to explain the relationship to their spouse. Whatever the circumstances, employers will want to make efforts to satisfy themselves that the relationship is consensual. Among other things, the subordinate must be given a legitimate opportunity to raise any concerns without fear of retribution.
Assuming that the relationship is consensual, the employer should assess whether changes can be implemented to remove any actual or perceived conflict of interest. This can include transferring one of the employees so that they are no longer in a reporting relationship. Of course, this will be easier in a larger organization, where there may be other teams, departments, locations or shifts. In some cases, one individual may have to leave the organization.
At this point in time, it is more important than ever to have clear harassment policies in place which define the inappropriate conduct, establish reporting mechanisms, address issues of confidentiality and direct how the employer will investigate and impose remedies as appropriate. Employees must know that they can report harassment without fear, that their privacy will be respected to the extent possible, and that harassers will be penalized.
Of course, not every instance of harassment will warrant dismissal. Sometimes, a lesser form of discipline will be appropriate. Other actions should be considered, such as training for the parties involved and others.
Valentine’s Day can be a fun event, and employers can take advantage of it to build employee morale. However, they must also be cognizant of inappropriate relationships and conduct. As is often the case, well-written policies that are clearly communicated will go a long way toward minimizing risk.