John Tory resigned from his position as the Mayor of Toronto effective February 17, 2023, after it was revealed that he had been involved in an inappropriate relationship with a former city staffer who reported to him.
The John Tory resignation exemplifies a major concern for many organizations that face similar situations where a senior level executive enters into a relationship with a subordinate employee and the reporting dynamics in the organizational structure causes a power discrepancy in their personal relationship that may affect the ability for one party to fully and freely give consent.
The public, high profile nature of this story and the media attention it has garnered are arguably unique given the public, political context in which the situation has played out. However, the particular issue—where a senior leader in an organization is believed or found to have engaged in significant misconduct that potentially involved misuse of power—is one that any organization could face.
The situation does raise questions about workplace romantic relationships, and the types of organizational issues that could arise from the fallout. These types of relationships can lead to harassment issues, opening leaders to liability, but also exposing the employer to liability if there are claims of condonation. More generally, where a relationship occurs that is perceived as inappropriate, this can have ripple effects on the workplace beyond the parties involved, negatively impacting workplace morale, and even the organization’s brand and reputation.
While there are several specific considerations for employers wondering how to prevent similar situations, the question of how to engage in effective workplace restoration is more complex, but also more broadly applicable.
Employment Law Considerations
To begin with the narrower issue, there are a number of measures that employers should take to address potential concerns that can arise as a result of workplace relationships, as well as steps that should be taken when allegations of misconduct arise.
Although there are no laws in Canada that prevent consensual workplace romantic relationships, a relationship involving two employees in a reporting structure can potentially violate organizational policies. For instance, a workplace relationship policy may be in place that outlines company expectations regarding romantic relationships within the workplace and restricts senior and subordinate relationships, as it may affect the employer’s operational functions or lead to conflict of interest issues. The policy may require a romantic relationship between senior and subordinate employees to be disclosed to human resources and outline guidelines for managing relationships when there is a reporting dynamic involved. Disclosure is key for employers, as they can take reasonable actions once they become aware of the relationship, such as removing the senior employee from managing the subordinate, to requiring the employees to sign an agreement stating that their relationship is truly consensual, that will limit liability for the employer.
Similarly, an employer will benefit from having a comprehensive workplace harassment policy in place to establish the expectations for respectful, professional conduct at the workplace and stipulate that any form of sexual advances or behaviour is unwelcome and will result in discipline. Employers would also be well advised to consider whether there would be a benefit in their particular contractual provisions to address potential misconduct, such as a morality clause that stipulates certain standards of employee conduct, including expectations surrounding employee relationships.
Once allegations arise, employers have to ensure that they are not prejudging the circumstances, and that they are dealing with an issue in a procedurally fair manner. Where corrective action is a possibility, a workplace investigation may be required to obtain particulars, and provide the respondent with an opportunity to fully respond to the allegations made against them. An investigation will allow the employer to dig deeper into the dynamics of the relationship to more accurately establish the existence of true consent between the parties involved and address any potential concerns of sexual harassment in all its forms, from unwanted physical touching to perturbing inappropriate comments. However, as consent is complex, employers would be well advised to ensure that the investigator looking into the matter has sufficient experience and training to appropriately examine the nuances of the circumstances, as failure to investigate appropriately can lead to liability for the employer.
As noted above, in most cases, where allegations of misconduct arise the employer will be required to ensure that a workplace investigation is conducted. Importantly, a workplace investigation is not the end point of a workplace concern—the process itself is difficult on all parties involved, and can significantly disrupt the workplace by impacting morale.
But what about a situation like that of the former Mayor? Here, the respondent admitted to the allegations, and decided to resign from his position. What happens from a workplace perspective where the allegations are not disputed?
In a situation such as this, workplace restoration is arguably even more important in order to repair trust that has been lost within the organization. While a workplace investigation may be necessary in some circumstances, depending on the nature of the allegations, it may not be necessary to investigate in depth where a respondent has admitted to the misconduct, and chosen to resign. However, without an investigation, employees affected by the misconduct may feel that they have not had an opportunity to be heard, and workplace perceptions of how seriously the employer takes the misconduct may be unfavourable, which can ultimately lead to morale implications and retention concerns.
Workplace restoration is a comprehensive process designed to rebuild employee engagement after a significant disruption in the workplace, by focusing on rebuilding relationships and restoring trust between members of the organization. In any significant incident of misconduct involving senior leadership, an organization can be disrupted in a multitude of ways. Rumours regarding interpersonal relationships and company culture may run rampant, increasing doubt in the organizational culture from changed perceptions of objectivity and fairness stemming from the incident. The fallout can ripple through an organization to affect employees with no direct involvement in the incident, as it may lead to confusion and stress from individuals taking sides, changes in workload or loss of productivity.
Ideally, prior to any workplace relationships being disclosed, employers should take the opportunity to assess the risk of workplace misconduct, particularly with respect to the potential misuse of power by a senior employee toward a subordinate, and the effects it may have on an organization. The scope for this assessment can include potential impacts to the employer’s business reputation, employee engagement, legal liability and overall productivity. It is important that employers not only assess the actual impact, but also include the perceived impact a potential situation involving misconduct by senior leadership can have on the organization. This risk assessment can enable organizations to then plan a pro-active restoration approach that seeks to address pre-identified apprehensions on an organizational and individual level.
Where some issues can be pre-emptively addressed, employers should consider working with management, health and safety committees or consider external organizational development experts to draft and socialize policies aimed to provide robust frameworks and resolutions to potential workplace misconduct issues, which can serve to prevent and minimize the impact based on the specific circumstances of the organization.
In addition to crafting effective workplace policies such as harassment and relationship management policies, employers should ensure that employees are made aware of these policies and management is properly trained to address any allegations of misconduct. Understanding procedures to formally and informally address incidents is vital to minimize the impact of an incident, including understanding how to appropriately separate employees in a reporting relationship and ensure objectivity and fairness remains for any employee affected by the disruption to the organizational structure. Managers need to ensure they carry out a resolution process with impartiality, which involves fully addressing the concerns raised before attempting to establish steps to rebuild trust. Management should evaluate team performance metrics to determine the scope of the impact on the workplace. As a prerequisite, the employers would be well-advised to ensure that managers are trained on how to identify employee concerns and/or disengagement.
Where workplace misconduct of this nature does occur, employers should conduct a post-incident assessment to determine the scope of who is impacted and the extent it affects the employer’s culture and brand, as each situation is unique and will require sensitivity to understand the impact it may have on an individual.
Determining a post-incident communication strategy can also be vital for the employer to respond quickly to any incident and communicate clear steps an organization will take to minimize the impact of the misconduct and reiterate guidelines concerning employee behavior moving forward. Employees who believe that their employer is in support of them moving forward through a formal resolution process will more likely become empowered to partake in any workplace restoration strategy the employer has implemented.
Depending on the nature of the positions involved in the misconduct, the magnitude of the comments and/or conduct in question, and the impact of the misconduct on the workplace, an employer should implement appropriate restorative activities to rebuild trust within the organization. Restorative activities may encompass events such as town halls, engagement surveys, team building exercises, focus groups, coaching, third-party interventions, training (for a person, team, or the entire workforce), policy updates and/or revisions, etc.
Restoration activities can also further reveal the pervasiveness of this kind of behaviour. Where activities reveal that employees feel romantic advances or similar behaviours in the workplace are prevalent or condoned, employers may need to reconsider the organizational culture they have perpetrated and identify a wholesale strategy to rebuild company culture. This may be done through implementing appropriate policies and procedures, or in certain circumstances, it may result in employees being reassigned or dismissed to repair the workplace dynamic.
Moving forward from serious misconduct by a senior level employee can be challenging for any organization, as it not only affects the employees directly involved, but can disrupt general employee trust in the organizational culture and result in a loss of productivity.
Even where procedures and policies are in place to reduce the potential for workplace misconduct, company morale and culture can still be affected. Employers should understand that engaging in an effective workplace restoration strategy can help address negative impacts resulting from a high-profile incident of misconduct, but rehabilitating disruptions to workplace culture is a gradual process that must be carefully implemented by the employer to substantively repair an organization’s credibility among its employees. Employers would be well-advised to ensure that workplace restoration strategies are clearly thought out and carefully implemented to maximize the potential benefits in the particular circumstances faced by the organization.