Loud-mouthed chatterer? Idle gossiper? Constant complainer? We’ve all been there, dealing with a dreaded bore of an annoying co-worker.
But when does an irritating employee become a full-blown threat to the organization? When can you fire an employee for being annoying? We spoke to Matthew Certosimo, partner at Borden Ladner Gervais LLP, who shed some light on the contentious issue.
“This actually comes up a lot,” explained Certosimo. “So much so that I have a chapter in our book, entitled ‘The Incompatible Personality’ (in Just Cause: The Law of Summary Dismissal in Canada), where I try to deal with this particular question. In a nutshell, there’s a difference between incompatibility and incompatible conduct that amounts to just cause. In other words, it’s not usually enough to terminate an employee with just cause because they’re annoying.”
Their behaviour has to rise to the level of harming the employer’s business, which can be demonstrated in any number of ways – according to Certosimo. For instance, is the incompatible employee significantly impacting morale? Is their disruptive behaviour impacting productivity?
A favourite case of Certosimo’s involved a Calvin Klein fragrance demonstrator who was terminated with cause for having a difficult personality, for constantly complaining about management and payroll, and because of her body odour.
“Ironically, co-workers complained that this fragrance demonstrator had bad body odour,” Certosimo told us. “In the end, the trial judge concluded that the employer would have had just cause had they provided the employee with warnings and an opportunity to address the concerns.
“Unlike wrongdoing, such as theft, where employees aren’t given another chance, in cases such as these employers are typically required to provide warnings and a chance to rectify the problem.”
But how difficult is it to prove? Well, that’s one of the benefits of going through a form of progressive discipline.
“It requires dialogue and some measure of investigation – potentially even some form of mediation between colleagues,” explained Certosimo. “Of course, sometimes the employee accused of being the annoying one may not be the guilty party at the end of the day. Sometimes, the ‘loner’ in a workplace is the one accused of being the problem by the majority when it’s not necessarily the case.”
You should be aware that disability and mental health issues also play a role in these sorts of cases. When employers are in receipt of a complaint about a co-worker’s ‘annoying behaviour’ they shouldn’t respond in a knee-jerk fashion. Certosimo advocated looking into the complaint to ensure that the concerns are not manifestations of a mental health issue.
“Watch out for complaints born of bias or prejudices, as well,” he continued. “For instance, there have been complaints over the years related to the odour of an employee’s lunch. In such circumstances, we’re talking about culturally-based eating habits, which if not dealt with properly could lead to allegations of discrimination.”
So, how do you separate the genuine complaints from ones born out of discrimination? Well, luckily for us, Certosimo has devised a checklist of sorts.
“The first thing you have to do is consider whether the ‘annoying’ employee is a detraction from company operations or from their duties. Look at whether or not what is being alleged is serious in its context, or something trivial.
“Then, look to see if there’s evidence of an employer’s attempt to address the employee’s conduct through some form of warning. Has the problem worsened over time? Has the employee been permitted to misbehave, such that it was condoned, allowing the issue to become a bigger problem?
“Bottom line: There needs to be evidence of a line in the sand, where the employee receives notice that there’s a problem and the opportunity to correct their behaviour.”
As mentioned in the case of the Calvin Klein worker, smells can cause friction in the workplace. But can you terminate an employee for having bad body odour? Find out the surprising answer here.