Archive for June, 2010

Another example of why bosses shouldn’t date subordinates

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Co-workers spend a lot of time together. That can lead to friendships and, sometimes, even more. It can get dicey, however, when relationships get into the territory of conflict of interest or sexual harassment. Harassment is usually considered unwelcome behaviour, but if it’s only unwelcome after the fact, should it be considered harassment?

Recently, David Davidar resigned as president of publisher Penguin Canada over a relationship with Lisa Rundle, a former employee who had an office beside his. Davidar had apparently had what he called a “consensual, flirtatious relationship” for five years with Rundle that grew out of a close friendship they had at work. During the relationship, Rundle asked him for a raise. Penguin had a salary freeze at the time, so he gave her a promotion.

Davidar, who is married, said he ended the relationship out of concern for his family. However, soon after, Rundle said she didn’t want the promotion and sued him for sexual harassment. She said he often leered at and stalked her. In October 2009, she said he forced his way into her hotel room and kissed her at a book fair.

Davidar’s predicament highlights the risks that can come with pursuing a romantic or sexual relationship with someone at work. In particular, Davidar showed bad judgment in taking what was a close friendship with a subordinate to the next level. Indeed, the fact she asked him for a raise and he gave her a promotion to get around a salary freeze showed there was a conflict of interest, which demands some sort of sanction. However, was it sexual harassment?

We obviously don’t know all the details and it’s a “he said/she said” scenario as to what really happened, but if the two were in a consensual relationship, is it sexual harassment? Though Davidar was Rundle’s superior, she was not a low-level employee and considering she asked him for a raise and got a promotion, perhaps she was exploiting him a little bit. It’s also curious that, after the alleged hotel incident, she continued to spend time with him, reportedly hanging out in his office to watch Australian Open tennis in January 2010. Her harassment claim didn’t come about until he ended things between them.

Romantic relationships between co-workers, and especially superior and subordinates, can be fraught with peril. Though they can work out, it’s also very possible a spiteful party can cause trouble in the workplace if a relationship ends. While it’s important to hear both sides of a case and try to learn the truth in these circumstances, it’s also important to ensure sexual harassment claims are legitimate and not an instrument of revenge by a scorned party. Davidar dug himself a hole with conflict of interest problems in his job and adultery in his personal life, but it’s important to know the facts before pillorying him for human rights violations as well. (None of the claims or counter claims in this case have been proven in court.)

But is a consensual relationship with a subordinate sexual harassment? Conversely, can exploiting a relationship with a superior to get raises and promotions be considered a type of sexual harassment?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

Did Rogers hit a foul ball with sports reporter?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

By now, many fans of baseball and the Toronto Blue Jays have heard of the strange disappearance — for a weekend — of Mike Wilner, a sports commentator and reporter who covers the Blue Jays for Toronto-based sports radio station The Fan 590.

Both the radio station and the baseball club are owned by Rogers Communications. While neither the Blue Jays, Wilner nor Rogers have stated this was a suspension, many critics say “if it looks like a duck…”

Suspicions arose after Wilner had a minor disagreement with Blue Jays manager Cito Gaston. Wilner and Gaston have had some dust ups in the past, much of it stemming from Wilner’s frequent criticism on his radio show of Gaston’s managerial moves. During Gaston’s daily pre-game media scrum on June 2, Wilner asked him some pointed questions about some decisions he made in the previous night’s game. Gaston didn’t like the line of questioning and, after some gruff answers and awkward silences, he changed the subject.

Wilner later posted on his blog that Gaston had “belittled” him. Two days later, Wilner was mysteriously absent, saying only he was taking the weekend off.

The unexpected sequence of events drew many comments, particularly from those concerned about journalistic integrity. Many, including the Toronto chapter of the Baseball Writers Association of America, felt this was an attempt to censor Wilner. However, this situation also has an angle employers should be wary of.

Putting aside the issues of journalistic integrity and possible censorship, this appears to be a situation where an employee of Rogers was doing his job as a reporter and commentator and was disciplined for it. Though Gaston and the Blue Jays denied any role in Wilner’s time off, was someone at Rogers was sending a message that they didn’t want one part of the company, the Blue Jays, cast in a negative light?

If this kind of situation happens at an employer, it should tread carefully. If something an employee does is looked at unfavourably, the employer should take a close look at the circumstances. Even if the employee is guilty of legitimate misconduct, the employer often has to give her a warning before implementing discipline. And things could get ugly if the employee inadvertently stepped on somebody’s toes while simply performing her job duties.

If Wilner was suspended, is it justified? Who’s liable for unjust discipline when the order comes down from the parent company? And what if Wilner’s bosses at the station disagreed with Rogers and refused to suspend him because they felt he was just doing his job? Could Rogers discipline them for insubordination?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit http://www.employmentlawtoday.com.

Flare-ups on the picket lines: Who’s responsible?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Work stoppages are usually pretty unpleasant situations. They’re a product of failed negotiations that not only create an untenable contract situation, but conflict between an employer and its employees. What if things start getting out of hand? How much leeway should picketing workers get in terms of their conduct?

The right to picket and demonstrate is a democratic right and it’s also recognized as a human right. It’s perfectly legal for striking workers to march outside a workplace with signs, singing songs, chanting and holding rallies. But do they have a right to go farther than that? And should non-employees be permitted to picket, particularly if they are hired to do so?

When employees of a Vancouver outlet of rental car chain Hertz went on strike early in 2010, sentiments deteriorated quickly. There were reports of harassment of Hertz management and non-union employees, as well as customers, by workers on the picket lines. This included sexual taunts, vulgar language and threats. It got to the point where Hertz obtained a court injunction against the union so striking workers would stop this kind of behaviour.

It came to light that a couple of individuals on the picket line — some of the most notorious for unruly and harassing behaviour — weren’t Hertz employees as all, but were in fact paid picketers. One of them was accused of hitting a manager’s car and making sexual comments and threats to female and male manager’s, as well as illegally blocking the entrance and exit to the workplace.

Strikes can turn into messy situations and sometimes strikers can develop an increased courage that comes with being part of a group, perhaps to the point of a mob mentality. While the right to demonstrate during a work stoppage is legally protected, who should be responsible if picketers cross the line into illegal activities, the union or the individuals? Should paid picketers be legal, particularly since they may be used, as in the Hertz case, to inflame the situation?

A lot of times it might just be easier for both sides in collective bargaining to just hunker down until they reach an agreement, no matter how far apart they may be.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publicaiton that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.