Workplace culture, investigations, and the cost of doing business

“The cost of doing business”, as the saying goes. Or, is the term used to shift the focus away from the responsibility of addressing the often-difficult topic of workplace harassment, discrimination, a negative workplace culture, and/or any other problem in the workplace?

An investigation, what’s it worth? (This full write up is available on our website)

We want to touch on three important topics that almost every business will deal with daily, and these topics require a lot of attention, in every aspect of our lives. 

First, harassment/discrimination, biases, and workplace culture that groups or individuals may inadvertently carry along with them throughout their working careers. (I realize this may be different than your typical blog, and it may look like a lot - stay with me and I promise it will make sense.) 

In some cases, the harassment/discrimination, biases, and a sour workplace culture could be the result of rumors, or an idea that was sold in order to influence another person or group. And this behavior and mindset, if left undetected or unchecked, can have devastating negative effects in the workplace, and at home. Also, it could have a profound negative impact on individuals mentally that may not surface immediately. Musty v. Meridian Magnesium Products Limited, 1996 CanLII 11127 (ON LRB) 

Example scenario (Fictional): 

-Let’s say in your workplace, the fortune 500, you’re one of the many senior executives, but you’ve only been there for a few months. You’ve attended many executive meetings where performance statistics were addressed and discussed but you were so new, that you just attended the meetings without inquiring too much about the members at the operational level. Unbeknownst to you at the time though, there was a key employee managing a team, a rainmaker, who reported to the “big boss”, who then reported to you. 

The team’s performance, with respect to making money, was known throughout the business, as was the hard and fast “my way or the highway” mentality of the key employee, and the rigid and unorthodox management of the team, and others who assist in their success. This management style was a common theme with this key employee that had not been addressed for years. Furthermore, it reached a point where the stress levels of those working for, and around the key employee were no longer manageable, and performance began to slow down. For some of the team members, they were losing valuable time with family and began to feel anxious about going to work. To a point where the team could be short at least one member, twice a week or more.

Shortly after the drop in team morale and at the end of a poor-performance work week, the key employee noted that the absenteeism and low morale had directly affected his team’s ability to continue at their normal pace. Instead of immediately following procedure, making you aware of the situation, discussing the performance issues with the team, and/or doing a self assessment, the rainmaker decided to bring the decreased performance issue up the chain, to the big boss. It was then discussed and requested by the rainmaker to remain between them. Since the rainmaker had a close friendship with the big boss, and they regularly went out for cocktails, the key employee wasted no time on giving an explanation, and asked for a new team. The big boss knew and understood that the rainmaker’s management methods were a little rough, and that they could sometimes be viewed as pushing the boundaries of the legislation and workplace policies. However, the request was granted without question because the big boss knows that the rainmaker gets results. The often heard saying and rationale at the operational level was that “sometimes it’s the cost of doing business”. 

At the end of the following week, the key employee and the big boss were out for cocktails and celebrating the rebound from the drop in performance, as well as the above average revenue for the week. The big boss asks why the team had to be replaced. They key employee simply states that they weren’t pulling their weight anymore and that new, fresh blood was required. Because the past week was a great one, and the big boss’ bonus was going to be even better, he simply accepted this reasoning at face value and didn’t ask further questions. He also wanted to avoid any disruption of operations, and/or a disagreement with you. Furthermore, the big boss didn’t bother bringing up the new team organization to you just yet, as he felt he had it under control, and after all, at the time, it did not affect the bottom dollar.

During this time, at the ol’ watering hole, some of the new team members were also out celebrating a great week under their new leadership. They had always looked up to the rainmaker, and some of their discussions that evening related to the key employee and speculation as to why they were now part of the team. Rumors suggested that the previous team wasn’t good enough anymore, or that they were “damaged goods”. At this point, parts of these conversations were overheard by some of the old team members. As the evening ended, everyone went home for the weekend and some of the old team members began to worry about their employment. They weren’t really given a reason for their new assignments, and the conversations they overheard made them question their worth in the company. For some, their stress began to affect their personal life and the anxiety was felt by everyone in their family. 

Come Monday morning of the following week, the rainmaker was back at it, making boat loads of money for the company, and you're getting the profit details during your Monday morning statistics briefing. Unfortunately, the big boss’ week was just derailed. He was informed that a member of the old team, who had been married for 20 years, with three kids in university, and employed at the company for as many years, was in a fatal head on motor vehicle collision as a result of driving while impaired at the end of that night at the ol’ watering hole. The big boss delivered the devastating news via an internal memo that created a ripple effect throughout the company. You became aware of this and started inquiring about what happened. 

Tuesday morning the big boss then found out from one of his close friends in operations, that two other members of the old team had decided to leave the company, and had started discussions with Lawyers, and the Human Rights Commission. Later that same day, the big boss received an email from the director of HR that informed him of an investigation with respect to discrimination and harassment that had been started, where the rainmaker was being accused by two other members of the old team. This has also come to your attention, and you begin more inquiries.

At the end of the following week, the big boss received another email from the director of HR, in which he found out that the spouse of the employee who passed in the motor vehicle collision, knew that the workplace environment had been difficult to deal with because it was often discussed at home, and that the difficulties at work were the source of inexplicable negative behavior that lead to substance abuse at home. (Kaila v Bluewater Health, 2014 CanLII 19532 (ON HPARB)  Moreover, the spouse had been made aware that the team members were often threatened with losing their jobs if they ever questioned the rainmaker, or discussed the issues with HR. 

You were eventually made aware of this as well, another new discovery, and the balls that were dropped by the big boss were suddenly in plain sight, bouncing around in your office, and you are still trying to figure out how they got there. This giant mess of a situation needed to be dealt with, and you must now initiate an investigation to figure out how it became this big of a cluster foxtrot in the first place. – 

Okay, so the preceding fictional scenario example sort of describes a powder keg with a short fuse, ready to explode and deal a devastating blow to a lot of people. An investigation into something as catastrophic as this could land a large, medium, or small corporation, its senior executives, senior leadership/management, operations level leadership/management, and many others in dispute for years - costing everyone involved a lot of money and having a negative impact on many. (Colistro v. Tbaytel, 2019 ONCA 197)

Most companies may never see this happen. If this is a story that isn't possible in your workplace as a result of your internal responsibility system, and other internal controls - then you are in a good position, and you have a very solid command of a positive and productive workplace culture. This is a standard we all hope to achieve in the workplace. 

In the above noted narrative, what would it have cost the big boss to immediately question why an entirely new team was required? To discuss any performance issues with the rainmaker, and offer some assistance with respect to the rainmaker adapting a new approach, while coaching his team to improve? A lot less than what the described outcome will cost. Also, if the situation warranted further investigation regarding how the rainmaker was treating the team members, the big boss could have moved another key player into the position, maintaining performance, while the investigation took place. 

Furthermore, it could be argued that the current workplace culture played a key role in the fact that the big boss had not chosen to address the issues that were affecting the performance of the team. The big boss elected to maintain status quo and keep the problem individual in play because it would keep the revenue coming. He avoided dealing with what you, as the senior executive, might say or instruct him to do to resolve the issue which may have resulted in the big boss possibly being put in an awkward position with his “buddy”. Additionally, it was known that key employee’s management style was a little rough and unorthodox and was not questioned about it on the basis that it produced revenue. “Cost of doing business?” Later in the scenario, there were allegations of harassment and discrimination by some of the old team members that the rainmaker was abusing influence and power. In one situation, the spouse of the victim of the motor vehicle collision claimed that there were problematic issues at home as a result of the workplace environment. 

At this point, we hopefully now understand that workplace culture can unintentionally, or intentionally influence how you manage or lead your team, and it can lead to workplace behavior that may be considered harassment, and/or discriminatory. How can this happen? - Rumors | Gossip = Biases | Workplace Culture 

In many workplace environments, there are discussions about those that are well liked and those that are less liked. There are discussions about what people think they know regarding another person’s work or home life. There are discussions about what someone is wearing, and how it is not designed for their body and that they shouldn’t be wearing it. There are discussions about another person’s personal features. We can go on, but, these are just some examples of topics that are discussed. What is notable here is that whether it is positive or negative, gossip and rumors can cause a lot of chaos and friction in the workplace. Specifically, they can influence bias and workplace culture within groups, as well as on a personal level. 

What is equally important, in the workplace and/or at home, is that we must understand that you can be part of a team/group, or in a meeting where you may not necessarily get along with every single person in there, but it doesn’t mean that you have to disagree with their idea or point of view. Moreover, you can be part of that same team/group, or in that same meeting where you may fundamentally disagree with ideas and decisions, but it doesn’t mean that you can’t get along with those people. 

Furthermore, let’s say you’re in a meeting, and/or you are a member of a team/group, where everyone seems to always just agree on everything and never respectfully challenge each other. You may not be achieving the same results as those who do regularly challenge each other, and you may be inadvertently condoning a culture of poor leadership and passive aggressive subordinates who will never appropriately, or reasonably question a bad decision. Sure, the meeting may last longer than it is scheduled to last if you challenge each other, but you will notice a higher yield with respect to usable and reliable working material. The important thing is to stay on topic and focus on the objectives, not on one's personal biases. These can derail any meaningful discussion very quickly. 

Keep in mind, if your meeting is about your company’s policies and procedures, either health and safety, emergency planning, workplace investigations etc., the long-term idea is to be proactive and specific with the policies, and procedures, and more importantly, to be sure to follow them. A failure to do so could result in a long and costly legal dispute, where the employer is ordered to pay out large sums of money in punitive damages. (Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419)  Be sure they are in line and meet or exceed the legislative requirements/minimums, and you will want to try and keep these challenges at the senior level, in meetings and during discussions. 

Although you may still want your workforce to be empowered and involved after addressing critical topics and issues in meetings at the senior level, the ground level is not the place to challenge a company’s reasonable right to manage, unless there is a reasonable and appropriate circumstance that justifies the challenge. 

Finally, as a leader, in any circumstance, it is important to be self-aware of personal limitations and understand how individual emotional intelligence can be used in a meaningful way to lead and participate professionally in any environment. 

In the above noted case, albeit a fictional but not impossible scenario, since there are so many individuals impacted by this event, the ability for the employer to make meaningful decisions during and after the investigation may be affected. Additionally, it may also be difficult for the employer to remain fair and impartial to both sides during the investigation, and may also be difficult to obtain accurate information from the employees that will be viewed as fair and impartial if the interviews are conducted by the employer. The employer can run the risk of waiting too long before they start the investigation, and as a result, may cause disruption in the workplace, as well as possibly impact the due diligence defense. Therefore, it may be wise to hire an impartial, licensed third-party investigations company, an employment lawyer/mediator, subject matter experts or depending on the circumstances, a combination of these.

We have heard the saying “cost of doing business” on a few occasions. Whether it be in the context of accounting, or in our fictional scenario noted above, where an investigation was appropriately warranted and never conducted. Unfortunately, the subsequent outcomes may not be favorable to those who chose not to act. The saying isn't always welcome in either setting, and it can also unfortunately carry a stigma that promotes a culture of bad behavior and an intolerance with respect to appropriately addressing a reasonable complaint or grievance. 

Making a positive impact at work or at home is a choice - a choice that requires the support and leadership of everyone. 

We may not always be able to provide you with the information you expected. Sometimes it isn’t that simple, but we will produce a reliable product and get you results. 

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