Dealing with Off-Duty Driving Offences

While it’s easy to say that what an employee does on his or her time off is none of the employer’s business, this is not always true.  When an employee’s off-duty conduct has an impact on the employer’s operations or reputation, or interferes significantly with the employee’s ability to perform the job, the employer has a legitimate interest in addressing that behaviour.  As discussed in an earlier post on the Ghomeshi fiasco, employees can incur employment-related repercussions for actions they take in their personal capacity.

But what about driving infractions?  Can offences behind the wheel have employment ramifications?  What about an employee who suffers from alcoholism?  Can they rely on their disability to excuse charges under the Highway Traffic Act or the Criminal Code?  As seems to generally be the case in matters like this, the answer to these questions is “it depends”.

As the Court said in Pearce v. Foster et al. (a “master-servant” case from the late 19^th Century):

If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service of the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant.

Of course, the determination of whether particular actions amount to cause for dismissal is a much less black-and-white affair than it was 130 years ago.  However, the principle is still observed:  an employee’s behaviour outside of work may have repercussions for the employment relationship (up to and including dismissal) where the behaviour is prejudicial to the employer’s interests.

Typically, whether or not off-duty driving offences or license suspensions (or other off-duty conduct) can be treated as ‘misconduct’ will turn on the nature and scope of the employee’s duties, the amount of notoriety their actions have attracted, the seriousness of the charges, the duration of the license restrictions or suspension, and the availability of other work or roles that don’t require driving. 

Before considering how to respond, an employer must make the necessary enquiries to determine what has occurred and how significant an event it is.  Obviously, the employee should be interviewed and any other available information gathered.  In some cases, this process may be hampered if the employee has received legal advice from a criminal lawyer and decides to exercise his or her ‘right to remain silent’.  At very least, however, the employer should require the employee to provide a copy of the information or ticket that was issued, and/or any documentation that may have been provided by the Ministry of Transportation (for example, where the licensing issue results from administrative reasons or an accumulation of lesser driving offences) to establish what charges and/or driving conditions apply.

Perhaps most crucial to the employer’s decision-making will be the nature of the employee’s role and responsibilities.  Is possession of a valid driver’s license a requirement of the position?  Is driving the primary or an essential duty of the employee’s job?  If not, how often is the employee expected to drive in the course of performing the job?  Does the employee operate an employer vehicle or his/her own car?  Does the employer maintain fleet insurance and what are its terms?  The more central that driving is to the employee’s duties, the more stringent the employer can be in its scrutiny of the circumstances of the loss of license.  However, it is also essential for the employer to understand the duration of the license suspension or conditions.  The shorter the suspension, the more carefully the employer should consider other options short of termination, such as an administrative suspension or reassignment to other duties (if they are available), to keep the individual employed until they regain the ability to drive.

The seriousness of the infraction and the employee’s explanation and display of remorse (if any) are also important factors to consider.  If the employee’s license was suspended administratively or for reasons unrelated to behaviour behind the wheel (for example, due to a failure to renew on time, failure to provide required medical information, or due to arrears in spousal or child support), the employer should consider options short of significant discipline or discharge.  On the other hand, conduct that suggests poor judgment or risk-taking (e.g., drunk driving, over 80 mg, or so-called ‘stunt-driving’), may attract more significant sanctions (and , therefore, less empathy).  Likewise, the attitude of the employee and any explanation they may provide must be weighed.  An absence of contrition or insight into the seriousness of the situation are poor indicators of likely good behaviour when driving for work in the future.  Of course, the employer must also consider the employee’s general history in terms of performance and behaviour – an employee with long, good service will obviously expect to receive more leniency than a short-term employee or one with a chequered past.

In some cases, the nature of the employer’s business and/or the notoriety of the employee’s behaviour may also be an aggravating factor.  Where charges against the individual have been reported in the media, the employer’s reputation may be at stake, particularly in a smaller community.  In some cases, the extreme safety sensitivity of the work may dictate that the employee be pulled off the road immediately (e.g., a truck driver who works for a company that hauls fuel oil or other dangerous goods on public roadways).  If there’s a risk that the employee’s behaviour may impact public confidence in the services provided by the employer (such as would be the case in policing), this will also be relevant to how seriously the misconduct is treated.

In any event, it cannot be assumed that the loss or suspension of an employee’s driver’s license will necessarily result in termination, even where driving is a significant component of their job.  As Arbitrator Owen Shime observed in one of the seminal arbitration cases on the subject (Re Bell Canada and C.W.C. (Shime), 24 L.A.C. (4th) 116):

An employee who loses his or her driving licence for violation of the Highway Traffic Act, [citation omitted], or a similar statute need not suffer a loss of employment, even where the employee is required to have a driving licence in order to perform his or her duties.  An employer is required to act reasonably and must balance its interests in maintaining production with the grievor’s interest in retaining his or her employment.  Also some care should be taken to ensure that the employee is not penalized twice for off-duty conduct but rather that there is a legitimate and significant employer interest that is being protected.  And finally, in the loss of licence cases there is a presumption that an employee should be suspended until other work is available or the employee’s driving privileges are restored.

Alternatively, a number of adjudicators have also held that an employer should consider the possibility of offering other, non-driving duties to an employee pending reinstatement of their driver’s license.  However, this option should only be considered in cases where the period of suspension or driving conditions is known and relatively short.  And of course, this alternative should never be considered where it would result in displacing another employee.  Only available work should be offered to accommodate the employee who has lost his/her driving privileges.

But what about the employee whose license is suspended due to charges related to impairment by alcohol or drugs, but who suffers from a known addiction?  What weight should the employer give the employee’s disability?  Is it an excuse or a mitigating factor?

In English v. Treasury Board (Solicitor GeneralCanada - Correctional Service), 2003 PSSRB 72, Board Member Guindon was dealing with the case of a correctional officer who was terminated for failing to disclose off-duty conduct (i.e., criminal charges related to drunk driving) that compromised his ability to perform his duties.  The officer had not told the employer that he had been convicted or that his license had been suspended for two (2) years.  In addition, he continued to operate employer vehicles (performing inmate transfers) after he lost his license.  Prior to the arbitration hearing, the employee expressed remorse and took steps to address his acknowledged problems with alcohol abuse.  The Board Member observed that the employee’s alcoholism had to be considered in assessing the appropriate penalty for his wrongful behaviour.  Citing an earlier decision, the Board Member wrote:

What emerges from these cases and the other material cited to the board is a recurring set of considerations and principles arbitrators take into account when dealing with discipline as it is applied to the alcohol and/or drug-addicted employee. These principles and considerations include the following:

1.            Alcoholism is recognized as an illness albeit one with an element of volition, that can attract varying levels of justifiable disciplinary response from the employer up to and including discharge;

2.            An adjudication board is entitled to look at the rehabilitative progress made by an employee subsequent to the employer's decision to discipline and is likely to modify that discipline if the employee can demonstrate that he has been successful in his recovery;

3.            The discipline imposed by an employer should only be modified in "exceptional circumstances" and those circumstances exist where an employee has shown genuine prospects for recovery and the restoration of a productive employer-employee relationship;

4.            The employer is entitled to insist that the employee perform the work for which he is paid and is not obliged to bear all the costs and consequences associated with an employee's inability to perform his duties as a result of his alcoholism;

5.            An adjudication board should consider the extent to which and the duration for which an employee is unable to perform his employment obligations;

6.            That where reinstatement occurs in substitution for discharge arbitrators are prepared to attach conditions to such reinstatement. Recognizing that alcoholism and drug addiction are not curable and can only be arrested by total abstinence, one such condition often attached to reinstatement is the requirement that the employee remain drug and alcohol-free.

In short, where it is established that an employee’s misconduct (in this case, off-duty driving offences) are related to a proven medical condition (i.e., alcoholism), the focus of the analysis will be on whether the employee acknowledges and seeks treatment for his/her problem, as well as the likelihood for recovery.  Evidence that the employee has sought treatment even after termination may be relevant.  However, the employer can in these cases impose conditions on the employee to ensure that the employee completes any rehabilitation program and complies with prescribed after-care (including abstinence from alcohol).

Where dismissal is not the appropriate course of action, an employer can consider withholding assignments that involve driving, transferring the employee to another position or other duties that don’t require a license, suspending the employee (where no other suitable work is available) or demoting the employee to a role where driving is not required.

While driving offences can have a significant impact in the workplace – hindering efficient operations or drawing unwanted scrutiny on an organization – employers need to be aware that not every loss of a driver’s license should attract the same penalty.  A careful, fact-specific assessment is required in each and every case.

Do you have questions how to deal with an employee who has lost their driving privileges?  Need guidance on whether or not to discipline for off-duty conduct?  Contact Lance Ceaser for expert advice.

Tales from the Electronic Workplace

Whether it's social media usage or just 'old-fashioned' email, some people still seem to underestimate the impact that misuse can have on their personal and professional lives (as well as the lives of others).  Some recent cases illustrate the point.

Labour Arbitrators Gail Misra and Elaine Newman recently had to deal with grievances brought by firefighters in the City of Toronto who were terminated for posting offensive comments on Twitter, which ultimately came to the attention of and were publicized by the National Post.  The employees had posted or re-tweeted comments or jokes that were disparaging of women, the disabled and visible minority groups. The tweets were discovered by the National Post, which then questioned how inclusive the Toronto Fire Service actually was.  This was particularly problematic for the employer, as it was in the midst of launching a diversity campaign to recruit women and other groups in accordance with the make-up of the community it serves.  The City was of the view that the tweets in question, from individuals who had identified themselves as Toronto firefighters, not only violated the City's policies, but also did harm to the City's reputation.

In the first of the grievances to be heard, Arbitrator Misra found that the employer had cause for some form of discipline, but ruled that discharge was too harsh.  It was common ground between the parties that the grievor had made the comments in his off-duty time, but that the grievor would have been aware of the importance of not bringing discredit to the Fire Service.  The Arbitrator found that the tweets were shared with co-workers, and had a connection with the workplace, and that their appearance in the National Post article did have potential ramifications for the City's reputation.  The Arbitrator also rejected the grievor's argument that he was unaware that his tweets were accessible to the public, given that he had an opportunity to review the terms of use for Twitter when he signed up.  Moreover, Twitter was designed to allow individuals to communicate publicly (in 140 characters or less) on timely topics.  The grievor may not have been aware of the Standard Operating Guideline specifically directed to social media use, but he knew that there were stringent expectations of firefighters whenever they were in the 'public eye'.  Accordingly, his inappropriate tweets (about 'swatting' a young woman in the head to "re-set her brain") did amount to cause for discipline.  With respect to two other tweets, however, the employer did not establish that the grievor's use of language had been offensive, within the context that he used the 'objectionable' terms.  Although the grievor did not fully understand why any of his comments on Twitter were inappropriate, he did apologize to the employer and his colleagues for the media storm that he had created.  In the result, the Arbitrator held that the penalty of discharge was excessive, substituting a 3-day unpaid suspension.

On similar facts, however, Arbitrator Newman found that discharge was warranted with respect to the other firefighter (decision not yet reported).  After reviewing the arbitral case law on off-duty conduct, Arbitrator Newman observed that the grievor ought to have known that his behaviour on Twitter was inappropriate.  Not only did it potentially bring discredit to the Toronto Fire Service, but it also violated the employer's anti-discrimination policy. At the hearing, the grievor's testimony suggested that he still lacked any insight into how improper his conduct had been, particularly for a firefighter.  In particular, Arbitrator Newman found that the grievor appeared to be incapable of behaving in a way that "brings honour to the uniform," and that his behaviour would reflect poorly within the community that the Fire Service was obliged to serve.  Given the damage that his actions had done to the employer's reputation, Arbitrator Newman upheld his discharge

In R. v. Dewan, the Ontario Court of Appeal was considering an appeal by the accused on his sentence for criminal mischief and harassment.  The appellant had tried to strike up a relationship with a co-worker which was rejected. The appellant continued to pursue the co-worker, until she advised him that she had contacted the police.  At that point, the appellant sent an email out that purported to come from the co-workers.  In the email (that was sent to 9 other co-workers) "degraded the co-worker professionally, sexually, and physically".  The appellant was also convicted of harassment with respect to similar behaviour toward a woman with whom he'd had a romantic relationship, after relations soured.  The appellant had served the equivalent of 2 months in jail, and was given a suspended sentence and 2 years' probation on the mischief charge, as well as 90 days (to be served intermittently) on the harassment charge.  The Ontario Court of Appeal dismissed his appeal, finding:

Having regard to the nature and seriousness of these offences, we are of the view that, even taking account of the appellant’s positive prospects and five months’ time served, imposing a conditional discharge would be contrary to the public interest. Intimate partners must be free to terminate a relationship without fear of abuse, whether physical or psychological, or retaliation of any kind. Even taking account of five months’ time served, imposing a conditional discharge would not reflect the level of denunciation these offences deserve.

These cases demonstrate that context is key in assessing what, if any, disciplinary response is appropriate when an employee engages in off-duty, online conduct that violates workplace rules.  Even pejorative terms in Facebook or Twitter posts should be carefully be reviewed to determine whether they would be offensive to a "reasonable person".  Where an employee's behaviour can be traced to a lack of understanding of the rules or even to the nature of how social media works, employers should be prepared to weigh these factors before doling out punishment.  However, where an employee engages in aggressive behaviour toward a co-worker (such as was the case in R. v. Dewan), whether in person or via email, an employer should take strong action to address the misconduct.  The Court of Appeal's denunciation of the appellant's conduct should serve as strong support for an employer imposing harsh sanctions, including termination.

Do you have questions about implementing social media policy or addressing inappropriate online behaviour?  Contact Lance Ceaser for expert guidance.  

 

 

 

Avoiding Risk at All Stages of the Employment Life-Cycle

As 2014 nears its end, I thought I'd offer some general guidance for employers.

Like pretty much anything else, the employment relationship can be neatly packaged up into three parts: the beginning; the middle; and the end.  Each of these stages of the relationship can be characterized conceptually by a predominant theme.  For purposes of this post, I'll call them "Expectations", "Performance" and "Cessation".  What occurs at the Expectations stage will have the largest impact as it can significantly change how the contract is performed and what happens when it ends.  Likewise, the Performance phase will influence when and how the contract ends.  Once the relationship has reached the Cessation stage, there is little that can be done to alter the outcome, other than to manage risks that have already been created earlier in the employment life-cycle.

So, how do you significantly reduce the risks inherent in the employment relationship?  Let's look at each stage and the critical steps that employers should consider.

Expectations

Prior to and at the time of hiring, employers need to consider how "expectations" are communicated to prospective or new employees.  Clear expectations eliminate misunderstandings and lay the groundwork for a transparent and accountable workplace.  Setting expectations takes some work, but removing ambiguity at the outset of the employment relationship sets the stage for employees to perform their duties and helps manage the risks (and costs) associated with ending employment.

• Review job descriptions on a regular basis to ensure they accurately reflect the job as it is currently performed.  A role profile that does not align with the role may mislead a new employee as to the expectations for their performance.
• Where appropriate, develop policies that are clear and unambiguous. Ensure that policies align with actual practices and procedures in the workplace and set reasonable expectations for both parties.  If a policy is difficult to enforce, it is likely to go by the boards.
• Document variable pay programs, such as annual bonuses or incentives, and make sure that new hires are given an explanation of how they work.
• Develop a solid, enforceable employment agreement.  Use plain language to spell out the terms covering wages, variable compensation, vacation and benefits entitlements, and the parties' rights and obligations on cessation of the contract.  Carefully review termination language in particular to ensure compliance with employment standards.  Failure to do so could lead to claims for 'reasonable notice' in the courts.
• Ensure that all required documentation is reviewed with new employees and signed off before they commence employment.  If policies are referenced or incorporated into the employment agreement, ensure that new hires are provided with the policies and acknowledge having read and understood them.

Performance

Once the formalities of hiring are out of the way, the real hard work begins.  While there is much that can be said about how to get the best out of employees while they are working for the organization, I'd like to focus on just a handful of keys that are likely to improve productivity while reducing legal risks.

• Whenever in doubt, be guided by fairness and reasonableness in administering the relationship.  It's sometimes easy to lose sight of the issue and focus on the employee, but this can prove disastrous. Enforce rules consistently, but with a contextual approach that weighs the circumstances, the history of the particular employee, how past issues were dealt with, and any mitigating or aggravating factors. Be prepared to be flexible in appropriate situations. Failure to insist on fairness can lead to morale issues (such as claims of favoritism or discrimination) and can also undermine the effectiveness of your workplace policies.
• Provide good supervision. Sounds simple, but it isn't.  It starts with careful selection criteria when hiring or promoting supervisory and managerial staff. I would suggest that it's better to look for leaders rather than technical experts. Yes, experience in the field is important, but it's often hard to make an exceptional 'lone wolf' into a good manager, no matter how accomplished they are. Follow-up on supervisory hiring with training on the basics of managing people (including the basics of human resources and employee relations). Failing to provide solid supervision invariably leads to underperformance that is not managed (and cannot be relied on later as cause for termination) and a failure to keep an eye on the workplace (which often results in complaints of harassment or bullying).
• Document, document, document. It's trite, but true. Failing to keep notes of conversations and coaching sessions can be costly later when you need to establish a pattern of inappropriate conduct or poor performance that you have tried to address.  Get in the habit of making brief notes to file, showing the date and time of discussions with employees. Ensure that all notes ultimately make it into a file that others can find later. Otherwise, you risk losing evidence that you'll need later when an employee challenges unwelcome discipline. 
• Make sure that managers actually manage. This means bringing issues to employees' attention when they arise (not months later when patience has worn thin), documenting conversations about the issue, providing timelines for improvement, and following-up in a timely fashion.  Managing performance, behaviour and attendance are tedious and time-consuming processes, but they should be the primary expectation that is placed on supervisors and managers.

Cessation

If the employer has paid proper attention to the details in the first two phases of the employment relationship, the third stage, Cessation, will typically be less risky and costly, and much more manageable.  Still, there are a few things to bear in mind.

• If the employer will be terminating the employment relationship, be prepared to pay.  It can be very costly to allege 'just cause' for termination.  The courts and tribunals will only find cause in the clearest of cases and on very compelling evidence. If in doubt, terminate on a without cause basis (and move to the bullet point immediately below).
• If there is a contractual termination provision in the employee's contract, ensure that you understand the employer's obligations and abide by them carefully.  No termination provision?  You'll have to choose between the statutory minimum (which is typically quite meagre), the employee's common law entitlement (typically quite generous) or something in between.  If in doubt, obtain legal advice.
• Plan and prepare for the termination meeting to ensure that it is conducted in a professional and respectful manner.  Try to avoid ending employment on a Monday morning or a Friday afternoon (except in the most extreme cases), and be conscious of any occasions that could place the employer in a bad light (e.g., try not to terminate the employee on their birthday or in the weeks immediately preceding Christmas).  Hold the meeting somewhere that provides privacy and where other employees won't be alerted to what is going on. Ensure that you consider arrangements to get the employee home in the event that they carpool or won't be in any condition to drive. Avoid escorting the employee through areas where coworkers are present following the meeting.  Failure to abide by these relatively simple rules could lead to a claim for enhanced or added damages in the event the employee later alleges wrongful dismissal.
• If the employee is looking to end the employment relationship, try to get their resignation notice in writing and verify that they have provided appropriate notice.  Ensure that they are given time to reconsider, particularly if they resign under stressful conditions or following a heated exchange. Whenever possible, conduct an exit interview to assess whether the climate in the workplace may have influenced the decision to leave.  It is valuable to find out whether there are unidentified issues that could lead the departing employee or others to raise concerns with harassment or bullying before you receive a claim.
• Prior to any employee's departure, make sure that you recover company property.  In particular, smartphones, laptops, VPN tokens and system/application passwords should be obtained to avoid the potential for a disillusioned employee being tempted to take data or engage in other post-termination misdeeds.  Once the employee has departed, ensure that all access is removed and that passwords are changed, as necessary.

While the foregoing guidance is not exhaustive, and is no substitute for legal advice, it does provide an overview of some of the larger risk management issues that employers face.  Being proactive, setting clear expectations, and ensuring that those expectations are routinely met, will go a long way to avoiding or reducing many of those risks.

Does your organization need advice on how to reduce the HR risks it encounters?  Need guidance on a particularly thorny or complicated employment situation?  Contact Lance Ceaser for expert assistance.

How to Make the Holiday Season Happy (and not get sued or fired in the process)

With the festive season kicking into high gear, you can't avoid crowded mall parking lots, the frantic search for the "perfect" gift, nor those well-worn holiday tunes playing virtually everywhere.  And you also may not be able to avoid the office Christmas party.  Whether you're the host employer or an attendee, there are a number of rules that everyone ought to keep in mind.

Employers

If you'll be hosting a gathering for employees, think about ways to reduce the risks commonly associated with the sometimes dangerous combination of people and alcohol.  Consider some or all of the following:

• In advance of the party, communicate to employees that drinking and driving and other inappropriate behaviour will not be permitted (albeit in a tactful way).  Encourage them to bring a designated driver and/or let them know that taxis will be made available, free of charge  (both to and from the party venue, if possible).
• Have your party hosted by a restaurant, hotel or convention centre that has its own trained staff to serve alcohol and monitor consumption.  They'll also have their own insurance.
• Limit the flow of free drinks.  Offer a limited number of drink tickets per person, and only offer a cash bar thereafter.  Try to watch for 'ticket-hoarding' or sharing of tickets.  If alcohol continues to be served after the meal, ensure that food is also being offered.
• Ensure that the bar has sufficient non-alcoholic alternatives on hand and that staff bring them to the attention of guests.
• Give an incentive for designated drivers - provide gift cards or other tokens of appreciation to those who identify as a "DD" upon arrival at the party.
• Provide taxi/limo chits to your guests - better yet if you can provide two-way transportation both to and from the party.  Once an employee shows up with a vehicle, it may be harder to convince them to go home in a cab.
• Be watchful - despite all of the steps above, stay on alert to identify any guest who may have over-consumed.  Take whatever measures you can to prevent anyone from driving under the influence.

Employees

Having a few drinks with colleagues can add to the seasonal celebration, but don't lose track of where you are:  an event sponsored by your employer.  Everyone is there to have fun, but make sure you don't have TOO MUCH fun.

• Plan ahead.  If you know that alcohol will be served and you're uncertain if transportation is being provided, ask the employer.  If all else fails, ensure that you plan a safe ride home for you (and your significant other, if they're invited).  Pre-book a taxi or car service , or find out if someone intends to be a DD and can give you a ride home.
• Even if the employer is providing an open bar, you are responsible to ensure that you don't become intoxicated.  Be your own liquor control board.  Alcohol may bring out behaviours that you will regret later.
• Remember that the company's policies regarding personal conduct still apply. Even if the party seems like the perfect opportunity to air your grievances from the preceding year, it's not.  This is a celebratory occasion. Avoid 'talking shop' if you can, and focus on your co-workers' plans for the holidays. 
• Tread carefully if you're thinking of pursuing an office romance at the company Christmas party.  Alcohol may lead you to misconstrue social cues turning flirtation into something more sinister.  The rules against sexual harassment still apply.
• Be careful what you post!  It's all-too-tempting to snap pictures of your colleagues after a few drinks and post them to social media, but think about the ramifications - for your co-workers and yourself. People's reputations may be damaged by inappropriate photos on Facebook, and your judgment could be called into question for posting them. Wait until the next day to post items about the party to ensure you don't hurt yourself or others. 

At the end of the day, exercising some common sense and good judgment will go a long way to avoiding what could be a very costly hang-over!

Do you have questions about the risks as an employer in being a 'social host'?  Need guidance on planning for party season?  Contact Lance Ceaser for expert advice.

Zero Tolerance ≠ Automatic Suspension for Any Violation of Safety Policy

Employers have very significant duties with respect to protecting the health and safety of their employees, and the potential liability to the employer in the case of an injury or fatality can be overwhelming.  As a result, many employers have adopted 'zero tolerance' policies to ensure that employees work in a safe manner.  But what does 'zero tolerance' really mean, and how enforceable are such policies?

In a recent arbitration decision, Arbitrator Paul Craven had the opportunity to comment on these concepts.  In U.S. Steel - Hamilton v. United Steelworkers, Local 1005, the grievor was by all accounts a good employee with a clean disciplinary record.  As he was leaving the plant one day, he was selected for a random vehicle search.  Plant security found a partial bottle of vodka in the trunk of the car, beneath some camping equipment.  The Company had a 'zero tolerance' policy that prohibited the possession of alcohol on company property, and provided for a 3-day suspension for a first violation.  The employee explained to the employer that he was driving his wife's vehicle that day, and that his daughter had previously used the car for a camping trip, and failed to unload the trunk.  A phone call to his daughter, in the presence of security staff, confirmed this to be the case, and the employer did not disbelieve this explanation. However, relying on the policy, the employee was still given a 3-day suspension, which he grieved.

At arbitration, the parties agreed that the Hamilton steel plant was a "safety-sensitive" environment and that alcohol and drugs should be kept out of the workplace, but the union argued that an unintentional violation of the policy which had no impact for plant safety should not have attracted such a serious form of discipline (the last step in the disciplinary process short of termination). The employer argued that strict and consistent enforcement of the policy was necessary to ensure that employees did not become confused about the rules against alcohol in the workplace.

Arbitrator Craven began his analysis by reviewing the decision in Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. Ltd. ("KVP"), which describes the test to be applied in assessing employer policies that have not been negotiated with and agreed upon by the union.

1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must have been notified that a breach of such rule could result in his discharge if the rule is used as a foundation for discharge.
6. Such rule should have been consistently enforced by the company from the time it was introduced.

Looking solely at the policy, and the company's evidence that it had been consistently enforced (with only one or two anomalous situations), the Arbitrator was of the view that the policy was generally reasonable and that the employer was entitled to rely on it to impose some form of discipline.  However, the Arbitrator then went on to consider whether the level of discipline imposed was appropriate considering the nature of the employee's policy violation.  Arbitrator Craven observed that if 'zero tolerance' means not only discipline for every violation, but the "automatic application of ... a significant penalty" (such as a one-week suspension) in every case, without this being part of the written policy, then the policy would fail the reasonableness test on the 2nd, 3rd and 4th prongs of the KVP test.  In short, if specific violations are to be subject to automatic penalties, those must be set out in the policy itself and brought to employees' attention.  Arbitrator Craven went on to state that 'zero tolerance' in the sense of a set penalty for any violation of the policy has also been held to violate the just cause provisions of a collective agreement (by not considering individual circumstances and by imposing discipline that is not "progressive"), and therefore would fail the test in KVP for that reason.

In looking at how the employer applied the policy to the grievor, the Arbitrator found that the punishment did not fit the crime. The employer had mechanically applied a set penalty without first considering the employee's disciplinary record and his blamelessness in unwittingly violating the policy.  The three-day suspension was found to be too severe, and was to be removed and replaced with a written warning.

The message to unionized employers should be clear.  In the absence of an agreed-upon specific penalty clause in the collective agreement, the employer should not impose automatic disciplinary sanctions for policy violations, even where there is a legitimate and pressing reason for insisting on 'zero tolerance'.  Zero tolerance should only be applied at the stage of determining whether there has been a violation of policy (i.e., an investigation should occur, and measures taken to address every violation).  Once a policy violation is found, the employer must assess the seriousness of the violation, considering the actual or potential harm to the organization, the presence or absence of intent, the employee's disciplinary record, the level of discipline previously applied for similar violations, etc.  Only by performing this analysis before taking corrective action can an employer later justify its actions.

Do you have questions about instituting new policies or the imposition of discipline?  Contact Lance Ceaser for expert advice.





 

 

 

 

 

Employer Condones 'Wilful Misconduct' by Failing to Take Effective Action

Under the Employment Standards Act, 2000 (the "ESA"), employees generally have an entitlement to notice of termination or payment in lieu of notice, unless they fall into one of a handful of exemptions.  One of the exceptions provided under the Regulations to the ESA covers "[a]n employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer."  Because the ESA provides a statutory minimum entitlement, adjudicators apply the exemption from termination notice or pay very strictly.  Employers will often focus on the seriousness of the offence, and struggle to establish the "intent" (i.e., the wilfulness) necessary to bring a "just cause" dismissal within the exemption.

However, as the recent decision in Cancore Building Services Ltd v. Merlos illustrates, employers also need to be aware of the dangers of having condoned an employee's bad behaviour.  In Cancore, the claimant was the supervisor of a window washing crew employed by the janitorial company.  He started with Cancore in 1989, and was promoted to a supervisory position after years of good performance.  However, as early as 1999 or 2000, the company began to have concerns about the claimant's performance as a supervisor, including misstating the hours that his crew worked on time sheets that he submitted.  He was cautioned about this issue at the time, and received repeated notes and warnings from the company regarding deficiencies in his supervision of staff, his work attitude, and his lack of responsiveness to pages.  In 2009, the employer again advised him to only record actual hours worked by his crew on time sheets, and that "padding" time sheets amounted to theft from the company.  Even more openly critical letters were written and given to the claimant in 2009 and 2010, which again highlighted the inaccurate reporting of employee working hours. The 2010 letter to the claimant purported to be a 'final warning' that he had to improve in all areas, but only three (3) weeks later, the employer issued yet another warning about improperly completed time sheets.  No disciplinary measures were ever taken to address his shortcomings.

In July 2012, a student employed on the claimant's crew told the company that he had been paid 8-hours' pay on a day when he did not work 8 hours.  Rather than investigate, by reviewing the time sheet in question or asking the claimant about the allegation, the employer summarily dismissed the supervisor.  In the termination letter, the employer accused the claimant of "time theft", among a number of other things, and stated that his behaviour constituted "willful misconduct" and cause for termination.  The employee filed a claim with the Employment Standards Branch, and an Employment Standards Officer found that he was entitled to termination pay.  The employer sought review of the Order to Pay at the Ontario Labour Relations Board.

The Board started by observing that where an employer tries to rely on an exemption from an entitlement under the ESA, the employer bears the onus of proving that the exemption applies.  The Board found that the employer tried over a period of several years to improve the claimant's performance as a supervisor by "writing him letter after letter on the finer points of supervision", warning him about 'padding' time sheets.  While time theft of the nature alleged was "presumptively" wilful misconduct under the ESA, in the opinion of the Board, the employer did not have any evidence that the claimant had intentionally attempted to obtain wages for himself or his crew for work that they had not performed.  When an opportunity arose for the employer to establish that this was in fact the case, when the student came forward, the employer failed to investigate and just assumed that the allegation was true.  Moreover, despite numerous warnings over a period spanning about 12 years, the employer never imposed any sanctions on the employee.  In the words of the Board:  "That, quite simply, is condonation within the meaning of the Act."  In the result, the application for review was dismissed and the Order to Pay termination pay was upheld.

The decision in Cancore is illustrative of a number of principles and best practices that employers need to embrace.

• Managers need to be prepared to have difficult conversations with employees, about their performance, but they also have to be equipped to take meaningful action to address shortcomings and misbehaviour.  A written 'scolding' on a periodic basis, if not backed with progressively harsher forms of corrective action, will not suffice.
• Whenever feasible, investigate concerns about employees when they first arise.  Often where there's smoke there's fire, and it's best to stamp it out before it  becomes a blaze.  Remind senior management that putting in time and effort now could save a lot of aggravation and money down the road.  The longer the employee is allowed to stick around, the greater the risk that it will amount to condonation and the larger his/her entitlement to termination pay (and severance pay, if it applies to the employer).
• Enact policies and procedures to address the areas of concern.  Ensure that the policy is written in plain language and clear on what is permitted and what is not.  Educate employees on the content of the policy, and that there will be consequences for breaking the rules.
• Consider whether your existing policies and employment contracts provide the ability to impose disciplinary sanctions on employees, such as suspensions of varying lengths.  If the employer does not have the authority to suspend, doing so could amount to constructive dismissal.  If in doubt, speak to a labour & employment lawyer for guidance.
• If you find out that an employee has been engaged in a practice that is contrary to policy for an extended period of time without being addressed, set the stage to confront the issue going forward.  Bring the issue to the employee's attention, including the fact that the employer is aware of past violations, and put the employee on notice that the behaviour will be subject to discipline if repeated.  Follow-up and document any repetitions. (Check out the decision in Leon's Furniture Limited for an example of how an employer successfully addressed a pattern of bad behaviour that had persisted for some time.)

Employers need to be aware that their actions (or inaction) can be the biggest impediment to removing unsatisfactory employees.  By ensuring that dismissals for "just cause" also consider the more stringent requirements under the ESA (i.e., serious, intentional misconduct or neglect that has not been tolerated ), employers can avoid issues under the Act as well as at common law.

Do you have questions about the difference between "just cause" and "wilful misconduct"?  Need advice or guidance on an issue related to dismissal?  Contact Lance Ceaser for expert assistance.

 

 

Labour Arbitrators Uphold Discharge of Facebook Bullies

Two recent cases illustrate that labour arbitrators are more than willing to consider misconduct via social media a serious offence.  In both cases labour arbitrators upheld the terminations of employees for incidents of online bullying and harassment.

In CEP, Local 64 and Corner Brook Pulp and Paper Limited, the grievor worked at a pulp and paper operation for almost 13 years.  On one occasion, the grievor was asked to work a casual shift cleaning up pumps on one of the paper machines.  While cleaning the area around the pump with a pressure washer, water from the washer hit the motor and grounded it.  The motor sparked before coming to a halt, and the grievor was frightened by the incident.  She believed that the work was dangerous, although she was assured that it posed no risk of injury.

A couple of days later, the day that an investigatory meeting was scheduled to occur, the grievor posted comments on Facebook abusing certain named managers and threatening violence against management for failing to take safety seriously.  Two of the managers named in her post were concerned enough to contact police, although no charges were laid.  A co-worker mentioned the post to the grievor, and she immediately took it down.  However, by then it had been posted for several hours and would have been visible to a number of other employees who were the grievor’s Facebook “friends”.

During an investigatory meeting, the grievor acknowledged that she had made and posted the comments, but minimized the degree to which they were intended to be threatening.  She also seemed less than remorseful, and more focused on finding out who had ‘ratted her out’.  The employer discharged the grievor, relying on her Facebook comments and a prior one-day suspension that she received for abusing a supervisor about one year earlier.  Her discharge was grieved.

At arbitration, the grievor testified that she had been diagnosed with anxiety earlier in the year, and had been prescribed anti-depressants.  However, over time she decided to stop taking the medication (although she did not consult a doctor before doing so).  She alleged that, as she weaned herself off the anti-depressants, she had difficulty sleeping, especially following the “safety incident” that had just occurred.  She said in the circumstances, she was “not in her right mind” when she made the post in question.  She acknowledged that the comments were inappropriate and could be taken as threatening, and offered an apology to the company and the managers she had named.

The Arbitrator reviewed the evidence and found that the so-called safety incident did not constitute provocation, nor was the grievor justified in being frustrated with how the matter was being investigated by the employer.  The Arbitrator carefully analyzed the content of the grievor’s post and found that it contained seriously offensive and threatening statements.  The Arbitrator also reviewed the arbitral cases involving the appropriate penalty for abusive and threatening Facebook posts.  While many were distinguishable, the precedents did establish that a single inappropriate post, if egregious enough, could constitute just cause for discharge.  Moreover, even in those cases where adjudicators had found that dismissal was inappropriate, the claimants often weren’t reinstated due to the damage to the employment relationship.

In considering mitigating factors, the Arbitrator did not accept the grievor’s medical explanation for her behaviour.  While the Arbitrator believed that she may have been having difficulty sleeping, it appeared that she was able to perform her job and the post was logically constructed, suggesting that she was not “crazy and delusional”, as she alleged.  Her 13 years’ service was a consideration, but given the severity of the posting, her disciplinary record, and the lack of any indication that the employment relationship could be repaired, the employer was found to have just cause to discharge the grievor.

In United Steelworkers of America, Local 9548 v Tenaris Algoma Tubes Inc., another employee was terminated because of a Facebook posting.  After a dispute about how a co-worker was performing her job as signalperson, a crane operator went home and posted disparaging comments about the co-worker on Facebook.  Although he did not name her, the co-worker was identifiable to other employees by the manner in which the grievor described her.  A second employee chimed in suggesting that the grievor should commit a physically aggressive act to the co-worker, to which the grievor responded by suggesting that a “violent and humiliating sex act be inflicted upon” the co-worker (to quote the Arbitrator’s description of the comments which were omitted from the decision).  The co-worker was alerted to the comments by another employee, and approached Industrial Relations the following morning.

It was notable that the grievor’s last comment was posted two hours after the first.  After he was called to a meeting with Industrial Relations the next day, but before the meeting, he deleted the post.  Because the grievor was not utilizing any privacy settings, the post was open to anyone who came upon his Facebook page. 

In the investigative meeting, the grievor acknowledged his wrongdoing, and offered to apologize to the co-worker.  Management advised him that this would not be a good idea as the co-worker was still very upset.  The grievor expressed concern that he didn’t want to lose his job.  He was not asked about any events that preceded or may have influenced his behaviour, and the employer ultimately concluded that this act of harassment was inconsistent with continued employment.  The grievor was discharged, and the matter proceeded to arbitration.  The other employee who commented on his post received a 10-day suspension.

The Union argued that the employer was not compliant with the Occupational Health and Safety Act in that its policy was not recently updated and available to employees in a conspicuous location, and therefore could not rely on its Bill 168 obligations to discharge the grievor.  It further argued that the grievor was truly remorseful and was a good candidate for rehabilitation, despite some past discipline.  The Union also argued that the employer did not consider the safety issue that had arisen between the grievor and his co-worker on the evening preceding the offensive posts when it decided to terminate his employment. 

Arbitrator Trachuk considered the evidence and rejected the Union’s position, finding that the largest aggravating factor in the case was the “vicious and humiliating” nature of the comments that were made.  Moreover, the Union’s argument that the employer should have considered the dispute between the employees before deciding to discharge the grievor was misguided:  even if the grievor was frustrated with the way the employer responded to the issue, that could not in any way explain or excuse his behaviour.

With respect to the fact that the harassment policy was ‘inaccessible’, the Arbitrator did express mild concern that it should be more readily available.  However, she observed that the grievor had received training, and went on to state:

… Furthermore, sexual harassment has not just become unlawful or unacceptable with the inclusion of Bill 168 in OHSA. It has been in the Human Rights Code for many years. I did not hear from the grievor but it would be highly unreasonable for him to claim that he did not know that publicizing such comments about a co-worker was harassment and contrary to the company’s policies.

Although the employer’s policy did not mention social media activity, the grievor would have known that he was making public statements about a co-worker to other co-workers, and that the types of statements he was making could attract discipline.

With respect to the employer’s decision to terminate rather than imposing further progressive discipline, the Arbitrator found:

… progressive discipline is not appropriate in every case. Some offences are so serious that they warrant discharge. An employee does not necessarily get one free sexual harassment before he loses his job. The grievor, in this case, posted hateful comments about X, one of which could reasonably be construed as a threat of sexual assault. When men “joke” about the sexual violence they should inflict on a woman she can reasonably be concerned that they may actually hurt her.

In the result, the Arbitrator concluded that the grievor's 3 1/2 years' service did not deserve significant weight, and that discharge was the appropriate penalty in the circumstances.

 While it is not expressly stated in either decision, it appears that labour arbitrators are reaching the point where harassment, whether in person or through social media platforms, is viewed as an offence akin to theft:  an employer hardly needs to have a policy in order for employees to understand that abusive and intimidating behaviour directed at co-workers and managers will not be tolerated.  While employers still have obligations under the Occupational Health and Safety Act to ensure that employees do not engage in harassment or threats of violence, these decisions give some comfort that severe penalties can be imposed where this behaviour occurs.  As these two grievors learned, discharge is a likely outcome in the absence of very compelling mitigating factors. 

 Do you have questions about workplace harassment and how to address it?  Need assistance with appropriate policies or investigations?  Contact Lance Ceaser for assistance.

 

Arbitrators Have Exclusive Jurisdiction Over ALL Matters Covered by the Collective Agreement

A recent decision of the Ontario Court of Appeal highlights the importance of the decision in Weber v. Ontario Hydro almost 20 years later.  In Weber, the Supreme Court of Canada had to determine whether legislatures had granted exclusive jurisdiction to labour arbitrators to deal with all issues of interpretation, application or alleged violation of a collective agreement, or if they shared concurrent jurisdiction with the courts.  Under the former model, unionized employers and employees would have virtually no recourse to the courts if their disputes could be said to arise under the collective agreement.  The Supreme Court ultimately rejected concurrent jurisdiction, and stated very clearly that all issues arising in the unionized workplace that fell within the four corners of the collective agreement had to go to arbitration.

The employee in George v. Anishinabek (Police Service) was a member of the Anishinabek Police Service (the "APS") who was facing discipline.  Under a tri-partite agreement among the federal and provincial governments and several First Nations, the APS was retained to provide policing services within certain APS territories. Oversight of APS policing was granted to the Police Governing Authority ("PGA"), which was also responsible for decision-making under APS' Code of Conduct for its employees.  The PGA was also the "employer" of all APS staff, and was bound to a collective agreement with the Public Service Alliance of Canada, which provided a grievance procedure for all issues falling under the collective agreement.  Under the APS Code, decisions on discipline were to be made within 6 months of an incident, but with some discretion for the PGA to extend those timelines.  Mr. George was advised of a disciplinary hearing more than 12 months after an incident on the job, but was not given notice that APS had sought an extension of the time to commence a proceeding under the Code.  As a result, he brought an application for judicial review in the Divisional Court to quash the notice of disciplinary hearing (on the basis of a lack of procedural fairness), and was successful.  The APS appealed that decision.

At the Divisional Court, the APS did not challenge the court's jurisdiction to judicially review the decision of PGA, but this was the central issue in its appeal to the Ontario Court of Appeal.  While appellate courts will usually not allow parties to argue points that were not argued in the courts below, they did permit APS to pursue this argument as it might be determinative of the matter, could be argued on the existing record without further evidence, and would not be overly prejudicial to the respondent.  On the question of whether the Divisional Court had jurisdiction to engage in judicial review, the Court of Appeal relied on Weber to find that the answer was "no".  Under Weber, a court must consider the nature of the dispute, and whether that dispute falls within the ambit of the collective agreement in question. In applying the test to the circumstances of the case, Justice Doherty (writing for a unanimous court) found that the issue revolved around discipline.  While discipline was a matter covered by the Code, the Code was simply the mechanism by which the employer exercised its management rights under the collective agreement.  Accordingly, the dispute in question was one that fell within a labour arbitrator's exclusive jurisdiction, and the issue of procedural fairness should not have been addressed by the Divisional Court.

The Court of Appeal's decision serves as a good reminder of the extent to which a collective bargaining relationship changes the dynamics of a workplace.  Not only are typical employee relations issues barred from the courts, but any dispute or matter of interpretation, including those that arise under employment-related statutes, should be brought before an arbitrator for determination.  It is therefore important for employers to ensure that they are mindful of Weber when confronted with a claim (or the threat of a claim) in the courts, and to argue that the issue should be resolved in grievance arbitration.

Do you have questions about labour relations or other employment-related litigation?  Contact Lance Ceaser for assistance.