Employee Blunders? Maybe Not

 The Financial Post recently ran a Howard Levitt column listing "the 10 biggest mistakes employees make".

Well, not so much. Here's my take. 

1. "Thinking HR is your friend, or at least a neutral interlocutor"

Okay, so Howard isn't entirely wrong here. In theory, HR is supposed to be a neutral liaison between management and the workforce. In practice, it doesn't always work out that way, particularly in individual matters.

When it comes to policy development or other types of organizational reform, general inputs like employee morale will hold more weight. But when it comes to performance management, accommodations, and dismissals, HR is generally going to be the face of management. That doesn't necessarily mean they're going to act in bad faith - sometimes management wants to accommodate, or correct performance deficiencies, in good faith. But it does mean that the employee's interests are secondary to the employer's.

Where I disagree with Howard, on this one, is that I don't think it's a particularly common mistake for employees to think otherwise.

2. Believing that a workplace investigator is neutral or 'just wants to get to the truth'

Howard takes a very cynical - and, frankly, problematic - view of workplace investigations here, that an investigator's job "more often than not" is to build a case for cause. 

If the employer and investigator are going into the investigation with a preconception as to the outcome, that's going to create problems for the employer - tunnel vision to miss/ignore legitimate defences or mitigating factors.

And while it's certainly the case that SOME investigations are tainted by employer preconceptions, those can cut both ways. It's increasingly common that employers will routinely investigate certain types of allegations (e.g. harassment) as a matter of policy, and there are certainly occasions where the goal from the outset is to bury the allegation and protect the respondent. 

However, an employer should be vested in getting the truth, before making final decisions. Even where the outcome is virtually pre-ordained by the initial evidence, the investigation is important both as a matter of 'shoring up your case' and also 'giving the employee a chance to present their side'.

Of course, if you've done wrong, the investigator won't be your friend. But it's not always a railroad.

I once had an employer come to me with an embezzlement issue: The employee (with authority to self-approve reimbursement) had incurred numerous large payments/expenses which couldn't conceivably be business-related.

I told the employer to get the individual out of the workplace - on a paid investigative suspension - while looking into it. No conceivable business-related explanation? Well, sure, let's test that theory and see what the individual's actual explanation is. They're obligated to participate in the process, to provide receipts and records relating to the expenses, etc. If you're right that they're fraudulent, then otherwise you'd come to trial with the employee saying "I kept the receipts in a filing cabinet in the office; the employer must have lost them." It's the employer's onus, in a wrongful dismissal trial, to prove that the expenses were fraudulent. But during employment, the employee can be required to prove they're legitimate.

But the flip side was this: Maybe there was a legitimate explanation that management just hadn't thought of.

Yes, in this scenario, there's certainly some truth to the notion that management is trying to lock the employee into their defences and positions at a time when they're in control, but there's also the opportunity for the employee to show legitimate defences to allegations of ostensibly serious misconduct.

I've said this before: An employer should want the investigator to comprehensively get to the truth. If they don't, they're doing themselves a disservice.

3. Not contacting a lawyer the moment you are under investigation 

Self-promoting nonsense, that. There's usually nothing a lawyer can meaningfully do during the investigation. The employer controls the process, and the employee is obligated to cooperate. 

If I sit in an investigative interview with an employee client (which my client isn't entitled to insist upon, btw), I have no power or right to insist that my demands be met, or to instruct my client not to answer questions. And if I try to do so, I'm both annoying management and risking additional allegations of misconduct against my client. (Refusing to cooperate with an investigation is insubordination.)

Even where the investigation is procedurally flawed, the employee's lawyer pointing out the flaws is very unlikely to draw a response of, "Oh, you're right, we'll do better."

And if the investigation is a railroad, that's just as well, because following dismissal, the flaws in the investigation will make it more difficult for the employer to rely on.

Nineteen times out of twenty, when an employee gets their lawyer involved in the employment relationship, that relationship is about to collapse. In the kind of scenario Levitt's talking about, the benefits of having a lawyer during the investigation are pretty marginal, but, statistically speaking, you're basically eliminating any chance that your employment with that organization can continue.

(There are exceptions, particularly where the employee is in criminal jeopardy that they want to guard against.)

4. Asking the employer for a contract

To some extent, it depends on what's meant by 'contract', but I generally agree with Levitt here: Written employment contracts are generally written to protect the employer's interests.

5. Relying on severance pay calculators

Okay, I'll largely agree with Levitt on this one, but mainly for the same reasons as number 6.

6. Negotiating your own severance settlement

Yes, this one's right. A lot of things go wrong here, but the biggest two are that (a) you probably don't know your entitlements, and (b) the employer is less likely to take you seriously if you're not prepared to retain a lawyer.

The worst ones I've seen are where the client initially tried negotiating themselves, and made offers that seriously undercut their own entitlements before coming to me. If you've already told the employer you're prepared to walk for $x, it compromises your bargaining position.

If the matter can be resolved without litigation, most good lawyers can handle that process for ~$3k. (There's a range, certainly, but when I see some lawyers demanding $6k for legal fees in the initial demand, I think worse of the lawyer.) If you were making decent money in your job, it doesn't take much additional notice to be 'worth' hiring the lawyer.

There are RARE exceptions, where moral considerations outweigh legal ones, and the employee can secure a greater offer from a sympathetic HR rep than their lawyers would recommend following a legal demand letter.

7. Not listening to counsel. 

Yes and no. When I did employee side work, I found that my clients usually DID listen to me. If, as an employee side lawyer, you're frequently having problems with employees not listening to you, that may be a 'you' problem.

When they didn't...if they wanted to take a more aggressive position than I recommended, it usually meant they ended up having to pay me a bit more money for a slightly more protracted process. If they wanted to take a less aggressive position (e.g. taking an offer I didn't recommend), that's their call, wanting the finality.

It sometimes irked me to not get to go hard at an employer taking unreasonable positions...but it's not about me. 

The biggest problem I usually had with employees 'not listening' was on the mitigation front, not making or recording adequate attempts to get new work. 

8. Waiting too long to act after problems arise 

Levitt's right on this one - constructive dismissal law has taken some wild turns here. That said, it's still not an issue I ran into with particularly high frequency.

9. Signing an employment contract when already employed

This one's more complicated. Yes, there's a risk that a new contract will compromise substantial existing entitlements...but that's a relatively rare case. Sometimes the employer is just reaffirming and shoring up existing probably-enforceable language; and in many cases the employer is trying to foist new terms in a way that's not enforceable. 

I disagree with Levitt's assessment that "for that reason, employers provide something in return". Sometimes, sure. But the jurisprudence, and my own experience, is absolutely rife with cases of employers failing to do just that, and ending up with a 'contract' that's really just an inky napkin.

If an employer is trying to get you to sign a contract, it's worth talking to a lawyer about, and there's no one-size-fits-all solution. Refusing to sign will usually bring the relationship to an end shortly, and yes, you may be entitled to notice for that, but that's not always better than just keeping the job.

Maybe the contract is sufficiently unlikely to be enforced that you can sign it and not worry about it. Maybe the contract is likely to limit entitlements, but existing entitlements aren't enough to throw away your job to maintain - if your common law notice period is only, say, 3 months, and you think it might take you more than that to find new work, maybe you sign the contract and just start looking for your new job. (Is it possible that the employer immediately turns around and fires you as soon as you've agreed to reduced entitlements? In theory, sure. In practice, that raises all sorts of other employer risks.)

Point is: There are risks of signing a new contract, but the specific risks are worth assessing on a case-by-case basis. 

10. Not documenting concerns on the workplace as they occur

I'll generally agree with Howard on this one: Keep contemporaneous notes of workplace issues. Make them on your break, or your lunch, or at the end of your shift. What date, who was involved, where was it, what happened. And the when/where of your note preparation.

And I'll add one: Keep those records AT HOME (or on your own personal electronic devices).

*****

The author is an in-house lawyer in Alberta. Views are the author's alone. This article does not contain legal advice, but general legal information. If you have a legal issue, consult a lawyer.