'Disciplining a high-ranking executive can present different issues'
With leadership teams under increased scrutiny for their actions both in-person and online, executives are being held accountable left, right and centre – with some even losing their jobs for ill-judged posts and risqué messages.
But where does HR factor into the equation? Is it a case of judge, jury and executioner? How should practitioners approach disciplinary matters in the upper echelons of the boardroom?
It begins with being prepared for anything.
“All companies should have appropriate employee handbooks and policies in place that contain comprehensive disciplinary procedures laying out steps that should be taken if a staff member commits an act of misconduct,” says Olivia Cicchini, legal specialist at Peninsula in Toronto.
These documents, in combination with the C-Suite employee’s contract, should provide the employer with important tools and rights, such as reserving the right to suspend the C-suite employee pending an investigation, says Cicchini.
“While employers should apply their disciplinary policy consistency amongst all employees, disciplining a high-ranking executive can present different issues.”
Understanding discretion
The issue when dealing with harassment allegations in the C-suite comes down to understanding and practicing discretion. While HR leaders need to ensure that they conduct a full and thorough investigation, it’s important to handle it with confidentiality.
“When disciplining any employee, including C-suite staff, it’s important to keep the process confidential,” says Cicchini. “If the executive’s misconduct becomes public, by way of litigation or through the media, then depending on the matter and what actions are in process, the company will have to choose from a number of responses.
“These include sending an internal memo to address the misconduct with employees or addressing the issue publicly to help uphold the company’s reputation.”
What steps should HR take in investigations?
Under Ontario’s Occupational Health and Safety Act (OSHA), employers have a duty to investigate any claims of misconduct – this includes workplace violence, harassment, and bullying – regardless of the employee in question’s rank within the organization.
“After receiving the initial complaint, the employer should inform the respondent of the claims against them and have a meeting to discuss disciplinary action,” says Cicchini.
After the meeting, the employer should commence a formal and confidential investigation by interviewing the affected parties and any witnesses.
“During the investigation, the employer may choose to temporarily suspend the respondent until the investigation report is complete. When the investigation has concluded, the employer should compile an investigation report detailing the findings and result of the investigation,” she says.
“After sharing the final report with the complainant and respondent, the employer can take further disciplinary action if needed, up to the point of termination. Depending on the size and resources of the company, the employer may choose to hire a neutral, third-party investigator to promote an unbiased outcome.”
Repercussions of ‘failure to inquire’
One of the lesser-known accommodation obligations under Ontario law is the duty to inquire – and a failure to investigate can lead to serious repercussions for employers.
“While employees have a duty to request workplace accommodation if they require it based on a protected ground under applicable human rights legislation, employers also have a duty to inquire,” says Cicchini.
“If an employee is acting strangely or unlike themselves, the employer has a duty to ask the employee if they require any workplace accommodation, modification, or other support.
“If the employer ought to have reasonably known that something was wrong with an employee but fails to inquire about it, the employee could potentially file a human rights complaint against the employer for failure to accommodate.”
And when it comes to investigating harassment or abuse claims in the C-suite, rank and seniority shouldn’t take precedence.
“When disciplining a C-suite employee, HR leaders should take the same approach as they do for other employees,” warns Cicchini.