Canadian HR Reporter

CANADIAN HR REPORTER April 20, 2015 INSIGHT 19 Bad behaviour, no witnesses If an investigation points to a culprit by process of elimination, can we dismiss or discipline the employee? Question: Can there be just cause for dis- missal — or at least significant disci- pline — if an employee isn't caught red- handed and there are no witnesses but, through a process of elimination, she is the only possible culprit of serious mis- conduct such as vandalism or drug use at work? Answer: Sometimes, the evi- dence found during an investi- gation will clearly show an indi- vidual was guilty of misconduct. Perhaps, as the reader suggests, the accused was caught "red- handed" and cannot deny what she has done. Even in such circumstances, just because an employee is guilty of misconduct does not mean she can be fired for just cause. Once misconduct has been shown, the employer must under- take an assessment as to whether the employment relationship has been irreparably harmed, which will involve a contextual analysis of all relevant circumstances. In many cases, discipline will be warranted but summary dis- missal will be disproportion- ately harsh, in light of all of the circumstances. In most cases, the evidence may not meet the criminal standard of "beyond a reasonable doubt." Nevertheless, as our judges do in civil courts everyday, the employ- er is entitled to reach a reasonable conclusion based on the evidence before it. Every investigation should in- clude interviewing of witnesses and the accused. In particular, the accused should be confronted with the allegations and given a reasonable opportunity to re- spond to them. If, at the end of the process, the employer feels it is likely the em- ployee engaged in the suspected misconduct, then discipline will be appropriate. As set out above, it will then have to consider all of the relevant circumstances in order to deter- mine whether summary dismissal can be justified. However, just because the misconduct cannot be proven "beyond a shadow of a doubt," that does not mean the employer is precluded from tak- ing action. is issue often arises in cir- cumstances where one employee accuses another of harassment. Many such cases come down to an issue of credibility. As I discussed in a recent semi- nar on how to deal with allega- tions of harassment (which is par- ticularly timely in light of the Jian Ghomeshi situation), employers cannot simply conclude by saying there is contradictory evidence and they cannot reach a definitive conclusion. It is up to the employer to assess all of the evidence, including the story of the accused, and weigh it against the evidence of other wit- nesses (if any), as well as consider- ing whether the accused's expla- nation has an air of reality. In other words, the employer is entitled to assess credibility and reach a conclusion, even when the evidence is not definitive. Stuart Rudner is a founding partner of Rudner MacDonald, a Toronto- based employment law firm. He is author of You're Fired: Just Cause for Dismissal in Canada, published by Carswell, a omson Reuters busi- ness (see www.carswell.com for more information or to order your copy). He can be reached at srudner@rudner- macdonald.com. Stuart Rudner Toughest HR Question It is up to the employer to assess all of the evidence. Evert Akkerman Guest Commentary The temptation of reverse delegation Nobody wins when managers take back the work they've doled out We've all seen situations where managers delegate a task to an employee and then end up doing the work themselves, either because they take the assignment back or they allow the employee to give it back. is phenomenon is called re- verse delegation. When this occurs, organizations make less-than-opti- mum use of their human resources. Bosses who delegate work and then take assignments back from their staff are like parents who say to their kids "Here, I'll do it for you" or "Forget it, I can do it faster myself." In a work environment, this leads to two negative learn- ing outcomes: 1) the employee doesn't learn how to handle the task independently and 2) the em- ployee learns that the boss doesn't trust her to do a good job. When you reverse delegate work, employees learn that you'll always be there when they choose not to make an effort. Short-term, you get the job done, but long-term you're not doing employees any favours. You're allowing them to shed responsibility and shift it back to you. You're signalling it's OK for them to give up and take the easy way out. Meanwhile, they continue accepting their paycheques. An example from my own prac- tice: I witnessed a vice-president who had been put in charge of organizing the annual sharehold- ers' meeting interrupt a conversa- tion between the president and a senior manager to ask what kind of cheese the president wanted to have for the buffet. Instead of say- ing, "You figure it out," the presi- dent actually pondered the ques- tion and made a choice. ere are managers who say they want to delegate (after hear- ing about the benefits at a confer- ence), give their staff assignments and then insist on approving every step in the process or questioning every decision. I once had a client who authorized HR to approve employees' vacation requests, as she didn't want to be bothered with something that micro-level. That sounded great but guess what happened? e client chal- lenged every single approval be- cause it was "crazy busy" that day or that week and the company re- ally needed all hands on deck. My grandfather once spoke of a car repair shop that went out of business because the owner knew everything best and wouldn't let people do their jobs. He spent most of his time lying under cars and doing the repairs, while the three mechanics he hired stood around and watched him work. The best bosses I've worked for gave me a task, told me which results they were looking for and then left it to me to figure out how to get there. ey were available as a sounding board if needed, but they didn't step in or interfere. ey made it my responsibility by not letting me off the hook. At the same time, the implicit mes- sage was that they had faith in my ability to deliver. Consequently, I gained new skills through trial and error. As Rush Limbaugh said in his radio show in 2010: "Most people, if you ask them as adults who was the best teacher they ever had, will tell you almost without fail that it was somebody in their life who showed them they were capable of much more than they thought they were capable of." When executives get sucked into reverse delegation, they end up swamped with trivial tasks in- stead of plotting company strategy for the next five years. Organiza- tions have a hierarchy for a reason. e idea is that decision-making and execution are delegated to the lowest possible level, so that people at higher levels can focus on bigger issues. As Dr. Phil writes in Life Code: "Delegate to people who may not see the big mana- gerial picture, but have enough knowledge of the parts and pieces necessary to succeed." Some people actually like not letting go — they love being needed for even the most mun- dane matters. ey can never be away from work and think the or- ganization would collapse with- out them. A number of them are control freaks who should never have been put into managerial po- sitions, but they have their ways of getting there. ey don't really need staff — what they really crave is an entourage. eir egos drive them to be involved in everything, with morale and employee devel- opment as collateral damage. Let's say you run a company. Hiring people, paying them to work for you and then doing all the work yourself is counterpro- ductive. Deploying resources this way can lead to massive inefficien- cies — you end up doing work you weren't hired for, while your re- ports end up getting paid for work they didn't do. is is probably not something you would proudly ex- plain to the chair of the board. e board isn't paying you $300,000 per year to choose the cheese for the shareholders' meeting. Part of the reverse delegation problem is many people are ad- dicted to the excitement of telling the world they're in such demand that their life is out of control. Ask anyone how things are go- ing and I'll bet their answer con- tains phrases such as nuts, crazy, crazy-busy, insane, trying to catch up, exhausted, swamped, hectic, super-hectic and rollercoaster. Heaven forbid they admit they're not busy. At best, this would label them as lazy or disen- gaged. At worst, it would be per- ceived as an act of disloyalty to the hyper-society we live in and they wouldn't be invited to the next neighbourhood barbecue. Solutions Two approaches may work: self- help and HR help. Self-help entails acknowledging the issue, develop- ing the self-discipline to delegate and then sticking to that decision. HR help is needed when people don't acknowledge the issue, so it has to come in the form of perfor- mance management and action- able feedback. First, if you delegate a task and the employee tries to give it back with all kinds of excuses, resist the temptation to take it back. Even if you are frustrated, make a point of asking the employee to come to you with solutions for the issues he ran into, and then decide between alternatives. Just don't take it back and do the work. You'll be sending a crucial message to the employee and the organization at large. Second, once you've delegated a task, don't interfere. Make people responsible for the assignment and encourage them to deal with obstacles and deliver results. You can let them fall on their faces a couple of times and hand them the first aid kit, but stay away from operational stuff — it's simply not your job. Assume that you have competent staff and give them the opportunity to prove it. Or to prove you wrong. Since relying on people's self- discipline and ability for intro- spection may be dicey, you can achieve accountability by making delegation part of each manager's performance review. Take my word for it — people start paying attention and change their behav- iour when things are being mea- sured and there are consequences. When a manager has three consecutive annual reviews on which lack of delegation skills is highlighted, would you give that manager additional responsibili- ties? Documenting the issue and providing meaningful feedback are crucial if it is to be addressed. is is where HR has a key role and the organization as a whole can benefit. Evert Akkerman is a Newmarket, Ont.-based HR professional who has worked extensively in the private and non-profit sectors and freelances in PR and communications. Founder of XNL HR, he can be reached at info@xnlhr. com or (289) 338-4001. When executives get sucked into reverse delegation, they end up swamped with trivial tasks instead of plotting company strategy for the next five years.

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