Does ‘I’m sorry’ suffice?
There is something uniquely significant in the power that comes with saying the word ‘sorry’ that causes a shift in the dispute-resolution process. If there is a signal of remorse or regret for one’s actions, this often opens the door to forgiveness for those actions and the possibility of some form of redress and resolution.
This scenario played out recently in a privacy breach case, which took place in British Columbia. A nurse’s employment was terminated for cause due to her unauthorized snooping into patient medical records that were not assigned to her. As the nurse was represented by a union, the termination was grieved on her behalf, and the process for resolution went through the procedural steps to an arbitration hearing.
After hearing arguments from both the employer and the union, the arbitrator made the decision to have the nurse reinstated into her former position. This decision was based on a number of factors and was influenced heavily by the degree of remorse that the nurse showed during the course of the arbitration proceedings. The employer appealed the decision, but it was upheld upon review.
For the Human Resources practitioner there are a few lessons to be learned from these two decisions.
First, the concept of zero tolerance in employment policies and procedures may not be sustainable. This does not mean that the employer must accept unacceptable employee conduct or prohibited behaviour. It does mean that the employer, especially in a unionized setting, must be able to apply a level of disciplinary penalty that is proportionate to the alleged incident.
Arbitrators look to the correlation of the imposed punishment to the alleged ‘crime’. In this case, would the termination have been upheld if the employee had received a disciplinary warning or a suspension prior to this culminating incident? It is possible that the outcome would have been different.
Second, the issue of remorse comes into play as a powerful lever for possible rehabilitation and reinstatement. If someone shows true regret for their actions, an arbitrator may determine that this response is authentic and deserves forgiveness in the form of the employee getting their job back. What it does not take into consideration is the impact of the breach of trust that has happened between the employee and the employer. In this case, how will the employer be able to reconcile its responses to this employee as she comes back to work?
When an employee is returned to their previous position as a result of an arbitration decision, especially one that has been upheld upon appeal, there is no going backwards for either party. The employer will probably not want to pursue any type of supervisory action against the employee because the return to the position is one that was ‘forced’ through the arbitration process.Unfortunately, there is a resulting perception that the employee will be untouchable for the rest of their tenure with the employer. The employee will probably perceive any move on the part of the employer as retribution for their actions or feel that their performance is under constant scrutiny, even if it is not.
At the end of the day, forced reinstatement does not reduce the possible consequences of a severely damaged employment relationship. The only possible remedies that can help rebuild a fractured employment relationship may be some continued apologies and the acceptance of forgiveness for everyone involved.
- If you were the employer in this case, how would you perceive the grievor’s attempt at remorse?
- Do you think a zero tolerance policy for privacy breaches in a health care setting is appropriate? Explain your rationale.
- If you found out your confidential health records were accessed by someone who did not have authorized access, how would you respond? What would you expect the employer to do in your case?
- As the HR practitioner in this case, what steps would you put into place to prevent privacy breaches in the future?