Employment lawyer explains how differences in communication can lead to employee conflicts
A recent Canadian Human Rights Tribunal decision highlights the necessity of transparency and sensitivity when it comes to communication in HR and management practices.
The case centred around a bowling operation on the Membertou First Nation (MFN) in Cape Breton, and involved a non-Indigenous employee who claimed the Nation discriminated against her due to her race under Sections 7 and 10 of the Canadian Human Rights Act.
The claimant started work for the MFN as a cashier in its gaming facility in 2011, and was promoted to lead cashier in 2015, occasionally filling in as manager. In 2018, she signed a letter of offer to become the general manager of a new bowling alley, which included being involved with the development and opening of the facility.
Miscommunication and making assumptions causes big problems
The employee was terminated after a three-month extension of her probationary period, with two weeks’ pay in lieu of notice, which the employer noted was given “to assist her in transitioning to new employment” although it said she was not entitled to it.
The employee filed a wrongful dismissal complaint with the Canadian Human Rights Tribunal, alleging the MFN had “a policy that established a different set of preferential rules for Indigenous persons. … the fact that she is not Indigenous was a factor in how the MFN managed her employment and her dismissal, resulting in a discriminatory practice based on her colour, national or ethnic origin, and race.”
Lynn Iding, lawyer and inclusion strategist with Stewart McKelvey in Halifax, explains that although cultural differences were not found to be the cause of the allegations in this case, misunderstandings around communication and expectations played a part.
“It's difficult to quantify, but just generally in the world, I think a lot of workplace conflict and probably litigation arises from people communicating like ships passing in the night, misunderstanding each other or making assumptions about what the other person means or is saying,” says Iding.
“I think it's just a really great HR practice, even outside of the context of any kind of litigation to be culturally aware and go those extra steps to ensure that there is a meeting of the minds. It's hard work, but it's essential.”
Unanswered dismissal appeal and other miscommunications
The MFN said that the employee was terminated due to poor performance and insubordination. In her termination letter, she was told she could appeal her dismissal in writing within 15 days, which she alleges she did but received no reply. The MFN were not able to explain what had happened to her appeal, and her dismissal was not rescinded.
A large portion of the employee’s complaints stemmed from a lack of communication in the form of unanswered emails and requests. She alleged that the failures to respond demonstrated how the MFN treated her adversely because she was a non-Indigenous person.
“I always think it's a really great idea at the outset, having transparent conversations that acknowledge that cultural difference exists, rather than just waiting for a conflict to come up or waiting for a situation to arise that is stressful, or where there's a chance of miscommunication,” says Iding.
“It would make sense to just acknowledge that at the outset and say, ‘Let's decide together how we're going to understand each other and how we're going to communicate effectively.’”
In another exchange, the employee requested training around how to discipline employees and administer training documents, which was never answered. For its part, MFN maintained that policies around training and discipline procedures were her responsibility as the general manager.
“It is evident that [the employee] was unclear about what to do in certain instances and sought information and coaching. As general manager, the MFN expected her to be able to handle the matters herself,” the Tribunal panel wrote.
HR director filed grievances about claimant’s performance
During the course of her employment, the HR director of the MFN emailed complaints to the COO, stating that the complainant’s treatment and manner towards him was “unacceptable”, along with “a whole list of issues” he had observed in her dealings with employees.
For his part, the COO was unhappy about having to convene meetings on “mundane matters that he should normally not need to address as a COO,” the panel stated.
The employee denied having been informed of these complaints. Her employment was finally terminated when she formally disagreed with a decision to promote another employee to be her assistant manager. The Tribunal noted that it was difficult for the employee, a woman in her mid-50s, to find equivalent employment. She said that in job interviews, she had to explain the gap in her career path, and that in their small community everyone wondered why she was no longer employed by the MFN.
“I would say, in general, it's pretty easy to misunderstand and come to incorrect judgments or conclusions based on a lack of awareness of cultural difference,” says Iding.
“Because generally speaking, we deal with other people through our own cultural lens.”
The Tribunal dismissed the employee’s claims of discrimination, stating that the MFN’s decision was reasonable, and that there was no evidence proving or establishing “on the balance of probabilities” that she had been discriminated against under the Human Rights Act on the basis of national or ethnic origin, race, and colour.
“Generally, communication is improved when we realize that these vast differences exist,” Iding says. “[It’s about] asking followup questions … being extra diligent about taking some extra steps, rather than assuming that you know what the other person means or intends.”
