Labor


When a penalty for sexual harassment is reduced




In The Workplace
Rey A. H. Elbo


Posted on August 04, 2017


Our HR department has recommended the dismissal of our operations manager who was found guilty in a sexual harassment case. This was done despite the absence of a company rule and the penalty to be imposed. The boss of the manager is a vice-president who politely rejected HR’s proposal and instead imposed a 60-day suspension, but the penalty was officially communicated in the department as a vacation leave. This decision prodded the victim to resign. Is it proper for the vice president to over-rule HR? -- Feeling Unfair.

A little boy went to dine with his parents at the home of a religious, elderly gentleman. After watching the old man bow his head and speak in a soft voice, the boy asked his mother: “What did Mr. Cruz say to his plate?”

Like the little boy in our story, there is one question that we need to ask so that we can clarify this issue further. For one, I’m guessing that maybe, the HR department, in the absence of a clear policy on the issue, must have relied on Republic Act (RA) No. 7877, otherwise known as the Anti-Sexual Harassment Act of 1995 to recommend dismissal of employment of the manager-offender. It is the next best thing for HR to do given the absence of a company policy on sexual harassment.

Section 7 of the law says: “Any person who violates the provisions of this Act shall, upon conviction, be penalized by imprisonment of not less than one (1) month nor more than six (6) months, or a fine of not less than ten thousand pesos (P10,000) nor more than twenty thousand pesos (P20,000), or both such fine and imprisonment at the discretion of the court.”

Further, most company policies, like a Code of Conduct, even in the absence of a pertinent provision and applicable penalties on sexual harassment, must have a shotgun provision that whenever a criminal offense is committed, the errant employee, regardless of his job or rank in the organization must be given the penalty of termination of employment.

But then, even without this shotgun provision in your company policy, HR must have been motivated to recommend the best possible advice to the concerned department, using the provisions of RA 7877, which is easy to understand. After all, that’s what HR is all about, having the staff authority to weigh all options and give the best recommendation insofar as people management is concerned.

A staff authority, like those in HR, is a specialist in the field. The authority’s opinion can’t be ignored by any line authority, including the vice-president of your department, even if thinks he’s responsible for it. That’s the trouble when staff and line authority collide -- it can only be resolved by the CEO, who must weigh carefully all options and their implications for future cases.

To say the least, it’s improper for the vice-president to over-rule HR because of the many implications.

Would this set a precedent? I think so. What would prevent the next offender to plead for the same kind of leniency? What entitles the offender in our case to be given special consideration? And what does it make of the HR department, who could become discouraged because its recommendation has fallen on deaf ears, no matter how politely the rejection came?

In many dynamic and healthy organizations, line and staff authorities often respect each other so that they can subsequently work well together. That’s why it’s best to listen to HR as the internal expert on the matter, rather than ignore its recommendation.

Even with the 60-day suspension, which is considered a form of constructive dismissal, I find the penalty still too soft for the kind of offense that a department manager has committed. Sure, he can go back to his job, if he doesn’t mind the cold treatment and the grapevine around him.

I can’t understand how a department manager can stomach such gossip every day of the working week, meeting with people who may have known about his predicament. How about his credibility to govern his people? Or maybe, this manager knows trade secrets of the organization and top management feels that it is hostage to him?

We don’t know. Reflecting on all of these, your case illustrates how the “outcome bias” becomes important in people management. We tend to evaluate something based on management decisions, rather than the decision process. Therefore, your HR department must henceforth put in place a clear policy on how to handle future cases of sexual harassment.

This includes a provision disallowing any management official from tinkering with the disciplinary process and tampering its result. At the very least, HR must review its Code of Conduct to discover its flaws that allow other management executives from interference. After all, that’s what a “hot stove” rule is all about. It is visible, impartial, immediate and consistent.

Whoever touches a visibly burning “hot stove,” the offender gets burned right away, regardless of his rank in the organization. And every time an offender touches it, he gets “penalized” for it.

ELBONOMICS: Rejecting a recommendation is a punishment for the mistakes of other people.

elbonomics@gmail.com