Avoiding he says/she says
Smart employers immediately document any significant conflict in the workplace to protect themselves. It can be perilous not to.
When Isabel first started working for George in 1999, they were in a romantic relationship. That eventually ended but she continued in her work.
George ran a business out of his home selling promotional products. One day in 2016, Isabel said George came upstairs where she was working and yelled at her to turn music off she was playing during her break. She claimed he said “no wonder your life is so f---ed up listening to music like that” and told her to shut up, yelling at her throughout. Isabel said she was shaken and put her coat on and left because she was frightened. She had only seen him that angry once 10 years before when she threw a basket at him and he grabbed her throat and held her against a wall.
Isabel stayed off work sick for the next week and finally sent a text message to George telling him that if she was to come back, he would have to agree to never speak to her that way again, allow her to do paperwork from home and get paid for it and purchase accounting software that would allow her to do accounting from home. She said she needed to work more from home to allow her to heal.
George texted back that she should come in at 11 a.m. on the Monday to talk.
George denied having raised his voice about the music and said he simply asked her to turn it down as he found it depressing (probably country music). George testified that in the incident 10 years before, Isabel had attacked him and he had to call the police. She was taken away and spent some time in a psychiatric ward.
When Isabel showed up for the meeting, George offered an arrangement where she would work three hours a day every morning from the office and the rest from home. In the mornings he would be away at the gym. She packed up her desk and left and soon thereafter reported to a friend that she had been fired. She sued George for constructive dismissal and a failure to accommodate her mentalhealth issues. He knew she had long suffered from depression and general anxiety and should have let her work more from home.
Isabel claimed at trial that George only offered to allow her to work two days a week. The judge did not believe her.
Isabel claimed that she did not accept what George offered because she was fearful of him. The judge found that to be nonsensical since George would not be present when Isabel was in the office.
It was clear to the judge that Isabel wanted to work entirely from home, but given that a good part of her job was involved in taking orders, collecting swag and packing and shipping orders, that was impossible to accommodate.
The judge decided Isabel had unreasonably resigned from her employment and George did not owe her any pay in lieu of notice or other damages for failing to accommodate her disability.
Ultimately, the judge decided that Isabel was not a credible witness. She claimed to have forgotten what happened after the basket-throwing incident 10 years before, although her doctor’s notes indicate she had discussed her hospitalization with him long after the fact.
George was lucky the judge believed him over Isabel with respect to some of the key events in this story. A careful employer would have done followup confirming emails immediately after the music incident and the last meeting where accommodation was offered. If that had happened, it is unlikely the lawsuit would have been brought in the first place.
ED CANNING PRACTICES EMPLOYMENT AND HUMAN RIGHTS LAW WITH ROSS & MCBRIDE LLP, IN HAMILTON, REPRESENTING BOTH EMPLOYERS AND EMPLOYEES. EMAIL HIM AT ECANNING@ROSSMCBRIDE.COM