Example Cases

Valuable lessons can be learned from the following organisations:

Cantor Fitzgerald L.P., UK
Workplace bullying and constructive dismissal

Steven Horkulak suffered mental distress as a result of targeted bullying against him by his CEO at Cantor Fitzgerald in the United Kingdom. Unable to tolerate the behaviour any longer, Mr Horkulak resigned and brought proceedings against his employers, contending that he had been constructively dismissed, he had been subjected to “foul and abusive” bullying by his boss and that the outbursts had undermined his authority to manage staff, resulting in a breakdown of the duty of mutual trust and confidence and breaching his contract of employment. Criticisms concerning Horkulak had not been properly raised or handled, and the CEO had vented his disapproval directly to Mr Horkulak, both in private and in the presence of others. Consequently the judge ruled that he was entitled to damages for constructive dismissal, which were awarded in the sum of £912,000 for his loss of fixed salary and bonuses. [20]

Walkers, UK
Employee discipline and witness protection

Several Walkers UK employees were accused of misappropriating company money. Because of the likelihood of retribution, the informants were deeply anxious to remain anonymous. Walkers protected the witnesses by:

• Specially drafting witness statements to avoid identification
• Limiting contact with informants to just one trusted manager
• Limiting access to witness statements and not allowing copies to be retained by the accused or their representatives.

Balancing the need for accused employees to know the case against them and the need to protect informants, the Employment Appeals Tribunal recognised that the degree of protection afforded to witnesses was appropriate. It was noted that Walkers would probably have never been able to obtain sufficient evidence for disciplinary charges had they not put in place the strict safeguards on anonymity. It was found that the dismissals resulting from the investigation were fair. [21]

Dow Chemicals, USA
Email surveillance used to discharge employees

Dow Chemicals systematically sorted through a one-day sample of employee e-mails. During this period it was found that 254 employees had saved, filed or sent emails that had sexually-related, violent or other inappropriate content. Because the actual participation and involvement of Dow’s employees varied considerably, a set of criteria was devised so that discipline taken, if any, could be based on each individual employee’s behaviour. The criteria included offensiveness, what the employee did with the material (such as circulating the materials within Dow), and the frequency of the conduct. Dow discharged 20 employees and disciplined others. A subsequent court case, although recognising that Dow was most likely using the surveillance exercise as a tactic to break up union activities, upheld the company’s review and its use of employee email messages. [12]

Automated Waste Disposal Inc. (AWD), USA
Electronic monitoring saves overtime hours

Global positioning equipment was installed in AWD’s 200 waste disposal and sales vehicles to enable better accounting for productive time. This enabled the operations manager to gain a full picture of the location of employees using the radio-tracking devices and an Internet-based system. Before the installation of GPS equipment, employees were charging the company for overtime that they actually did not work. Using GPS, overtime dropped from 300 hours to 50 hours per week, and productivity increased. It was noted that when using electronic surveillance technologies, employers needed to ensure that their use was solely for business purposes, and that employees were well informed as to why the technology was being used. [22]

US Internal Revenue Service (IRS)
Workplace discipline to ensure employee success

The disciplinary model used within the IRS was a hybrid model using both progressive and positive disciplinary methodologies. Employee rights were preserved through the progressive disciplinary process along with an optional grievance process in which an employee could appeal managerial decisions. Managers had responsibility for motivating peak employee performance and for providing discipline in a fair, impartial and timely manner. A study of the IRS systems noted that many of the problems experienced by managers during the discipline process could be reduced through proper training, establishing clear and effective work rules, following guidelines and procedures consistently, and documenting disciplinary actions. The main aim of the IRS disciplinary procedures was to maximize the potential for employee success. [23]

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