At six feet five inches, 312 pounds, some might expect Jonathan Martin, an offensive lineman of the Miami Dolphins football team, to just "man up" when allegedly faced with intensive and racist harassment and bullying at the hands of his teammate, Richie Incognito.
However, earlier this month, Mr. Martin checked himself into a hospital for emotional distress. This occurred after he sat down to eat with his teammates, and everyone at the table stood up and walked away. Mr. Martin has also alleged player misconduct by Mr. Incognito, saying Mr. Incognito said he wanted to defecate in Mr. Martin's mouth, uttered ethnic slurs against him, threatened to slap his mother across the face, and coerced him into handing over $15,000 (U.S.) for a trip to Las Vegas that Mr. Martin did not even attend. While Dolphin teammates appear to chock this up to "locker room" mentality, the Canadian workplace would not.
The football field is no different from the hockey arena, baseball diamond, or any other workplace: Where there is workplace harassment and bullying, employers must take immediate steps to protect not only the person being harassed, but the other employees in the workplace. Otherwise, they leave themselves open to extraordinary damages of a punitive nature. In the last few years, punitive damages for failure to investigate workplace harassment or conducting a botched investigation have led to courts awarding hundreds of thousands of dollars against the organization.
The Miami Dolphins have taken a good first step in addressing this problem, as they have suspended Mr. Incognito indefinitely for his behaviour. Mr. Incognito is fighting back, filing a grievance against the team for suspending him. The Dolphins must also be commended for hiring a third party investigator, and pledging full co-operation. However, what about allegations that management knew this offensive behaviour was on-going, and nonetheless, allowing it to continue?
The word "enable" has arisen quite frequently over the last few weeks in Canada, both regarding allegations against Toronto's Mayor, Rob Ford, and against Senators on Parliament Hill for expense fraud. If sports teams, or any workplace, allow such serious bullying and harassment to continue, the workplace can only be seen to have "enabled" the bully, having devastating consequences both from a financial and emotional perspective.
Management needs to be aware of how to prevent workplace bullying, and how to address it when it happens. It is imperative that employers educate the workplace as to what bullying is, and what to do if it is suspected. Employers must have policies and procedures in place in order to address bullying and they must act swiftly to ensure it is addressed and that all employees have a safe and healthy workplace.
What about the harasser? While it is often tempting to react hastily, employers must engage in a fair and thorough investigation before making any permanent decision. Even if the conclusion is that harassment did occur, that does not automatically justify summary dismissal.
Determining whether just cause for dismissal exists is a two-step process: first, the employer must show that the employee engaged in misconduct and second, it must show that the employment relationship has been irreparably harmed. The second step involves a "contextual approach" in which all relevant circumstances must be considered. In other words, one does not consider the misconduct in isolation. The punishment must fit the crime, bearing in mind all relevant factors.
In many cases, courts will conclude that summary dismissal was a disproportionately harsh result and that some lesser form of discipline was more appropriate. Summary dismissal is a pretty harsh penalty, sometimes referred to by our judiciary as the "capital punishment of employment law." For that reason, it is reserved for fairly egregious circumstances.
While employers must ensure the safety of their workers, whether they are line workers or linebackers, employers should never act too hastily with respect to discipline or dismissal. Otherwise, they will take the hit both on and off the field with extraordinary damages
Natalie MacDonald and Stuart Rudner are co-founders of the employment law boutique firm, Rudner MacDonald LLP. Ms. MacDonald is the author of Extraordinary Damages in Canadian Employment Law and Mr. Rudner is the author of You're Fired! Just Cause for Dismissal in Canada.