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.

 

 

ESA Complaint Found to Not Preclude Human Rights Application

While the Human Rights Code does provide a mechanism to prevent the relitigation of claims that may arise under a collective agreement or another statutory regime, it will not apply in all cases to prevent a claimant from making an Application to the Human Rights Tribunal of Ontario (the "Tribunal" or the "HRTO") based on the same or related circumstances.  Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

The Tribunal's focus in these cases is on determining whether the other proceeding "has appropriately dealt with the substance of the application".  Mere overlap between the factual allegations will not suffice, unless the other matter has resolved the human rights aspects of the claim.

Recently, the Tribunal found that a claim of family status discrimination was not precluded by the employee having made a prior claim under the Employment Standards Act, 2000 (the "ESA").  In Bala v. TRQSS, Inc., the employee had advised her employer in January of 2013 that she anticipated having child care issues as her mother was becoming increasingly ill.  Although there was some discussion between employee and employer about the potential for trading shifts with other employees, it does not appear that any arrangements were put in place before the employee went on medical leave from mid-March until the end of April of 2013.  When the employee was supposed to return, she claimed one day of emergency leave to deal with child care, and was then absent for two more days.  The company advised the employee that she needed to attend work the following week or she would be deemed to have abandoned her position.  When she did not come to work for the first three days of the following week she was deemed to have resigned and her employment ended.

The employee made a claim to the Ministry of Labour for termination and severance pay under the ESA, but an Employment Standards Officer ("ESO") denied the claim, finding instead that the employee was disentitled as she had engaged in wilful neglect of duty.  She did not appeal the decision of the ESO to the Ontario Labour Relations Board.  The employee then brought an Application before the HRTO, alleging that she had been discriminated against on the basis of family status.  The employer asked the Tribunal to dismiss the application on the basis that it raised the same factual matters that had been addressed in the ESO's decision.

Following a summary hearing, the Tribunal rejected the employer's request to dismiss the Application.  The Tribunal noted that the remedial provisions of the ESA were not as robust as those found in the Code (at least in relation to orders to pay termination and severance pay), and that the ESO's decision did not reference the Code, the employer's duty to accommodate, whether the attendance policy was discriminatory, or any of the human rights issues that were raised by the Application.  Accordingly, it could not be said that the ESA claim had dealt "appropriately" with the "substance" (i.e., the human rights issues) of the employee's Application, and the matter should be allowed to proceed before the Tribunal.

While the Bala decision is fairly straight-forward on its face, it highlights an issue that employers should address when faced with a "proceeding" by an employee or former employee that may involve human rights issues, but which is not brought through the HRTO process.  Employers should ensure that any human rights claims are fully addressed in the initial proceeding, and dealt with effectively.  If the matter is resolved in a mutually acceptable manner, any settlement documentation should clearly address the fact that the human rights issues have also been fully and finally resolved.  Outside of these situations, arguing that a subsequent HRTO Application should be dismissed will be all but futile, and only serve to delay and drive up the costs of the litigation.

Do you have questions about procedure before the HRTO?  Wonder about the impact of various dispute resolution schemes on a claim?  Contact Lance Ceaser for advice and guidance.

 

Employer's Knowledge of Disability Not Necessary to Establish Duty to Accommodate Disabled Employee - Or is it?

While the law tends to move incrementally, one decision at a time, slowly establishing "precedents" that later decisions will follow, the outcomes in some cases do not always appear to be consistent.  Not infrequently, a decision may appear to be an outlier, at least until one delves deeper to understand the basis on which the result differs from previous cases. 

In a post on this blog in August (here), I noted that an employer generally does not have an obligation to accommodate an employee until such time as the employee comes forward with a condition that requires accommodation.  In both Bish v. Elk Valley Coal Corporation and Huffman v. Mitchell Plastics, employers were not held responsible for failing to accommodate employees who failed to disclose their "disability". However, it should be noted that in both decisions, the underlying condition related to substance abuse.

In a recent decision of the Alberta Court of Appeal, however, the Court found that an employer's knowledge of the employee's disability was not an essential element of establishing whether there was prima facie discrimination.  In Telecommunications Workers Union v Telus Communications Inc., the employee was employed as a representative in a call centre operated by Telus.  He was a member of a bargaining unit represented by the TWU.  At the time of hiring, the employee had completed a Diversity Form, indicating "yes" to the question of whether he was a "person with a disability".  At no time, however, did Telus follow up with the employee to learn the nature of his condition or whether he required any form of accommodation. The employee was ultimately hired, but began displaying performance issues within the probationary period. On the evidence presented at grievance arbitration, it appears that the employee may have told his supervisors that the performance issues were related to his "condition", but it was not clear whether he expressly mentioned having Asperger's Syndrome.  The grievor was terminated, and the Union took his discharge to arbitration.

At labour arbitration, the Arbitrator determined that the employee did have a disability and that the issues with his performance which resulted in his termination were connected to that disability.  However, the Arbitrator also found that the employee had not provided sufficient information to the employer to trigger the duty to accommodate (or even to compel the employer to look further into his condition), and that the position in question could not be modified in a way that would permit the grievor to meet the requirements of the job.  The Union sought judicial review, but the Arbitrator's decision was upheld by a judge of the Court of Queen's Bench.

On appeal, the Union argued that the Arbitrator and the lower court had both misapplied the test for prima facie discrimination, and had failed to properly consider the test for establishing a bona fide occupational requirement.  The Court of Appeal reviewed the test for a finding of adverse effect discrimination, and found that the employer's knowledge was not a necessary element of that test.  Provided there was a negative consequence for the claimant from an apparently neutral rule, and the employee's disability contributed to that adverse outcome, the claimant has made out adverse effect (or indirect) discrimination.  In the case at bar, the employee's disability was a contributing factor in his inability to meet the employer's performance standards, which led to his discharge, so he had clearly made out a case. 

However, the Court then went on to consider the test for demonstrating a bona fide occupational requirement as set out in PublicService Employee Relations Commission v British Columbia Government and ServiceEmployees’ Union (often cited as “Meiorin”), and found that the employer could not have accommodated the employee in his current or any other position, given the effects of his disability.  Accordingly, although the Court disagreed with the Arbitrator's finding that there was no prima facie discrimination, the Court upheld the ultimate decision to dismiss the grievance.

The Alberta Court of Appeal's finding that an employer need not have actual knowledge of an employee's disability before being obligated to accommodate the employee initially appears to be supported by the decision of the Supreme Court of Canada in Moore v British Columbia (Education).  However, the Moore test for prima facie discrimination does not stand in isolation. One must still consider the test in Meiorin, and other earlier human rights decisions, such as Central Okanagan School District No. 23 v. Renaud.  In the latter case, the SCC commented on the duty on a complainant, whether in a case of direct or adverse effect discrimination.  At p. 994, the Court stated:

The search for accommodation is a multi-party inquiry.  Along with the employer and the union, there is also a duty on the complainant to assist in securing an appropriate accommodation.  The inclusion of the complainant in the search for accommodation was recognized by this Court in O'Malley.  At page 555, McIntyre J. stated:

Where such reasonable steps, however, do not fully reach the desired end, the complainant, in the absence of some accommodating steps on his own part such as an acceptance in this case of part-time work, must either sacrifice his religious principles or his employment.

To facilitate the search for an accommodation, the complainant must do his or her part as well.  Concomitant with a search for reasonable accommodation is a duty to facilitate the search for such an accommodation.  Thus in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered.

Clearly, unless an employee explicitly draws the employer's attention to the need for accommodation (or even the fact of disability), there cannot be an obligation on the employer to take steps to accommodate the employee.  The employer's knowledge, therefore, is an element of the analysis (albeit not at the stage of establishing prima facie discrimination).

The result in the Telus case does line up with the outcomes in Bish and Huffman, but how the Court got there may have created unnecessary confusion in the law.  By suggesting that an employer's knowledge is not a necessary element of the discrimination and accommodation analysis, the Court may lead employers and HR professionals to believe that they need to ferret out any and all potential disability claims before they surface as human rights complaints.  The law does not go that far.  Employees still have an individual responsibility to be frank about the need for accommodation and to participate in the process.  That has been the law for over 20 years, and the decision in Telus doesn't change that.

Do you have questions about human rights issues or the scope of the employer's duty to accommodate?  Contact Lance Ceaser for expert advice and guidance.

 

 

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.

 

Legal Strategy as PR Strategy - Jian Ghomeshi's Dubious Lawsuit

As of this morning, the number of women making allegations of sexual violence against Jian Ghomeshi has grown to eight, with at least one person, actress and RCAF Captain Lucy DeCoutere, coming out of anonymity.  While I am a strong believer in the presumption of innocence, there is no question that this story has ceased to be about whether Jian Ghomeshi was fired for liking kinky sex (the way he has framed it in his Facebook post on Sunday), and is now about the emerging portrait of someone serially engaging in violence against women.  No charges have been laid, as of yet, but it stretches the imagination to believe that eight different women have all concocted similar stories in a malicious attempt to scupper Mr. Ghomeshi's career.  Whether or not he may face criminal prosecution remains to be seen.
 
And it is in this changing light that one begins to wonder if Mr. Ghomeshi's legal strategy isn't all part of the PR strategy that was implemented with his careful casting of the "truth" on Facebook.  Obviously, he has received advice from his "high-stakes" handlers at Navigator to get "out in front of the story" by formulating and offering a friendlier version of events.  But the lustre is coming off that narrative with each passing day and the mounting number of alleged victims.  So, what about this lawsuit that he started?  He wouldn't have sued the CBC if he and his legal team didn't think he had a case, right? 
 
Sadly, people assume that the mere commencement of an action in the courts must signal that the defendant has "done something wrong".  The fact is anyone can "sue" (start an action against) anyone else at any given time without ever having to establish that their claims have any merit.  Although bringing a matter to litigation is generally quite costly, it is a relatively simple and inexpensive process to start a legal claim.  And you can rest assured that it does have the impact of suggesting to the broader world that you have been wronged.  But what leads me to believe that Mr. Ghomeshi's lawsuit is more a PR than a legal play?
 
Let me start by saying that Dentons is a well-respected law firm.  I suspect their lawyers are smart, efficient, careful, and they know what they're doing.  But in this case they have brought a claim that has very limited chances of success.  Ever since the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, it has been the law of the land that matters arising out of an employment relationship that is governed by a collective agreement generally must be brought through the grievance and arbitration procedures, not the courts.  All such disputes fall within the exclusive jurisdiction of a labour arbitrator.  The decision in Weber was most recently upheld and applied in Ontario in George v. Anishinabek (Police Service).
 
And the decision in Weber is not limited to claims of unjust discipline or discharge.  It relates to any claim related to the employment and which can be said to fall within the 'four corners' of the collective agreement between union and employer. One of the earlier cases to consider Weber was the decision of the Ontario Superior Court of Justice in Ruscetta v. Graham.  In that case, an employee sued the CBC and its disability claims manager for their role in the denial of his claim for workers’ compensation benefits.  The disability claims manager had stated in correspondence to the Workers' Compensation Board (now the WSIB) that the employee was a “problem employee”, which was then picked up by the carrier of the CBC’s Long-Term Disability benefits (which were also denied).  The employee sued, alleging that the employer had made negligent misstatements and or defamatory comments, but also pursued a grievance with respect to the denial of LTD benefits.  On the basis of Weber, the Court found that the essential character of the dispute did arise out of the collective bargaining relationship and that the dispute was therefore within the exclusive jurisdiction of a labour arbitrator.  At paragraph 9 of the decision, the Court stated:

In short, [the] defamation complained of arises out of a communication from an employee of the CBC whose precise job was to communicate with the WCB regarding the claims of employees who are bound by the collective agreement and that communication was about the plaintiff solely in his capacity as an employee. As the collective agreement does govern issues such as injuries and LTD benefits, and the dispute arises in an employee-employer context, this court lacks jurisdiction to hear the matter.

 The motion to dismiss the action was granted.
 
With very few exceptions, defendants have been successful in arguing this jurisdictional issue to have actions in the courts dismissed.  Here are but a few examples:
 
Giorno v. Pappas – An employee brought a defamation action based on a memorandum that was circulated by another employee criticizing her work performance.  The plaintiff was a member of the bargaining unit represented by OPSEU, and also filed a grievance related to the issue, which was settled.  The Court determined that the subject matter of the action fell within the collective agreement and was subject to the exclusive jurisdiction of a labour arbitrator appointed under the agreement.  Therefore, the Court granted the defendants' motion to dismiss, which decision was upheld by the Court of Appeal.
 
Bujold v. Taylor – An employee brought a defamation action against his former supervisor on the basis that the supervisor leaked information provided by the employee to the effect that several named co-workers were using alcohol and drugs on the job.  The Court found that, as a unionized employee, the plaintiff was required to bring his dispute forward through the grievance and arbitration procedure, especially since part of his claim related to “loss of income” and was tantamount to a constructive dismissal claim.  The Court granted the defendants' motion to dismiss the action.

Soulos v. Leitch – The owner of a construction company brought defamation claims against members of the union, claiming that they had made untrue and disparaging comments about the company’s practices, and that the union had failed to live up to certain representations it made to the employer.  The Court granted the defendants' motion to dismiss the action as the allegations should have been addressed through the grievance and arbitration procedures under the Provincial collective agreement between the company and the union.

Byrne v. Ontario – An OPP Constable brought a claim for harassment, intimidation, and other tortious conduct against a number of fellow officers and management based on issues arising in the course of his employment, including the issuance of discipline and the imposition of performance management measures.  The Court found that grievance arbitration and/or the legislated scheme for disciplinary matters (under the Police Services Act) provided the exclusive means by which such disputes should be adjudicated.  Accordingly, the Court granted the motion to dismiss.

Walters v. Toronto Transit Commission – A bus driver brought a claim for malicious prosecution after the TTC instigated charges under the Highway Traffic Act following an accident the driver had in the course of his duties.  The Court found that framing the dispute as “malicious prosecution” did not take it outside the bounds of the collective agreement.  The employee had the ability to challenge any discipline that was imposed or otherwise grieve the issue of the TTC pursuing charges, and the issue should be dealt with through labour arbitration.  The Court granted the defendants' motion to dismiss the action.

Paonessa v. Lifemark Health Management Inc. – An employee who was terminated due to physical inability to perform the essential functions of his job brought a claim against the company that performed the Functional Abilities Evaluation that found him unfit.  The plaintiff's discharge was grieved and arbitrated, resulting in a settlement.  He was ultimately terminated a second time, due to an alleged breach of the settlement, and that termination was also grieved and the grievance settled.  The Court granted the defendants' motion to dismiss the action on the basis that the issue arose under the collective agreement and the arbitration process provided an “adequate remedy” to the plaintiff.

However, it must be noted that the defendant does not always succeed.  In one of the earliest post-Weber decisions, the Ontario Court of Appeal found that certain claims by a unionized employee could be brought in the courts.  In Piko v. Hudson's Bay Company, the employee had been found to have committed fraud, and her employer initiated criminal charges.  The Crown eventually withdrew the charges.  The employee brought a grievance challenging her discharge as being without just cause, but she also commenced a claim for malicious prosecution against the employer.  The Hudson's Bay Company brought a motion to dismiss the action on the basis that the subject matter of the dispute arose under a collective agreement and should be dealt with through arbitration.  The motions judge agreed, and dismissed the action.  However, Piko appealed.  At the Ontario Court of Appeal, the Court had to consider the impact of Weber, and observed:

Nonetheless, Weber also recognizes that the collective agreement does not govern every dispute between an employer and an employee. Some disputes between employers and employees may not arise under the collective agreement; others may call for a remedy that the arbitrator has no power to grant. The courts may legitimately take jurisdiction over these disputes.

The Court considered the relevant provisions of the collective agreement, and found that the essential character of the dispute did not relate to the agreement because of the employer's actions:

But her claim that the Bay maliciously prosecuted her in the criminal courts lies outside the scope of the collective agreement. The Bay itself went outside the collective bargaining regime when it resorted to the criminal process. Once it took its dispute with Piko to the criminal courts, the dispute was no longer just a labour relations dispute. Having gone outside the collective bargaining regime, the Bay cannot turn around and take refuge in the collective agreement when it is sued for maliciously instituting criminal proceedings against Piko.

In the result, the Court of Appeal allowed Piko to pursue her tort claims against her former employer.

Although relatively rare, the Piko decision has been relied on in other similar cases.  See for example, O’Loan v. Risinger, in which the actions of the defendants were found to be "personal" and unrelated to the plaintiff's employment, even though they all worked together in the same workplace.

So, does Mr. Ghomeshi's team really think it can shoe-horn its case into the exception created by Piko?  Can it point to some way in which the CBC has stepped "outside the collective bargaining regime" and brought itself under the 'general law' applied by the courts?  On the pleadings, there doesn't appear to be a suggestion that the CBC went beyond its responsibility and authority as Mr. Ghomeshi's employer in obtaining and acting on the personal information he provided.  The CBC had to make an assessment of whether the allegations, which had been bubbling for months, represented a real risk of damage to the broadcaster's reputation and brand.  As an employee, and one who was a very public face of the CBC, Mr. Ghomeshi had a responsibility to not engage in conduct (whether in the workplace or outside of it) that could damage his employer's business interests.  In short, the alleged tortious conduct is all part and parcel of the CBC managing the employment relationship with one of its "stars".  This undoubtedly would fall within the CBC's management rights under its collective agreement, including its authority to impose discipline for misconduct.  The fact that Mr. Ghomeshi has stated an intention to challenge his dismissal under the collective agreement bolsters this conclusion.  Characterizing the disclosure of personal information as being an incident of "common interest privilege" is just one way of reframing a very common workplace issue as a legal one - the situation is no different than a million other cases where an employee advises his/her employer of work-related issues before they come to the employer's attention in an effort to mitigate the negative consequences.  If "privilege" attached to these types of disclosures, employers would never be able to rely on statements made by an employee in the course of an investigation into alleged bad behaviour.  I doubt very much the courts want to set that precedent.

In short, I don't see how Piko could apply to this fact pattern, and I anticipate that the CBC will make the argument that it does not, in an effort to have the action dismissed.  Mr. Ghomeshi's legal team undoubtedly knows this, too.  That being said, it's entirely possible that commencing the court action really was part of the PR strategy to start with, and has already served its desired purpose.

Do you have questions about a legal dispute arising in the workplace?  Want to know whether it belongs in the courts?  If you have any questions about workplace law, don't hesitate to contact Lance Ceaser for assistance.

When is your personal life your employer's business?

 When news broke this weekend that Jian Ghomeshi had been terminated by the CBC, a lot of people were surprised and dismayed. When the reasons for his dismissal started to leak out (in large part due to Mr. Ghomeshi's post on Facebook), surprise turned to shock and indignation. How could the CBC come to the conclusion that Mr. Ghomeshi's personal sexual habits (which are, by most accounts, entirely consensual) have any bearing on his ability to perform the role of media personality? Since when is an individual's personal life their employer's business?

 

A few caveats are in order: I don't know any more about Mr. Ghomeshi's situation than I've read on-line. I have no idea what information CBC had received that drove its decision, nor can I comment on the veracity of the allegations that have been levelled at him in certain quarters. And I’m not passing moral judgment, positive or negative, on any sexual activities that he may have been involved in, provided they were lawful and consensual. 

 

But from a purely professional angle, this situation does raise very interesting, and potentially troubling, issues of personal freedom, privacy and autonomy, and the extent to which those values intersect with the employment relationship. How far can an employer reach into the dark corners of an employee's existence to assess whether they are involved in things that are (or may be perceived) as inconsistent with the duties for which they receive a pay cheque?

 

In terms of the legal concepts, older cases, dating back to the 19th Century, are very clear on the issue:

 

“The rule of law is, that where a person has entered into the position of servant, if he does anything compatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him. The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him. ... But if a servant is guilty of such a crime outside his service as to make it unsafe for a master to keep him in his employ, the servant may be dismissed by his master; and if the servant’s conduct is so grossly immoral that all reasonable men would say that he cannot be trusted, the master may dismiss him.”

 

...

 

“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.”

 

Pearce v. Foster et al. (1886), 17 Q.B.D. 536

 

While the language in the decision may be quaint, the underlying principle has continued to be applied by the courts, generally in cases involving alleged criminal conduct or acts involving dishonesty (fraud, theft, etc.) that occur outside the workplace. While an employer has a right to take action to defend its reputation, the courts will look to the quality of the evidence, and whether the conduct in question is truly at odds with the employer's business and/or the employee's duties. Unless the employer can establish actual or potential "prejudice" to its reputation or business, without necessarily proving any monetary loss, or that the employee was essentially disqualified from performing his or her job, then it will not have cause to dismiss the employee.

 

The courts have had to consider whether sexual 'impropriety', in various forms, amounts to cause for summary dismissal in a number of cases. One of the most widely publicized recent decisions was Kelly v. Linamar Corporation, in which the plaintiff was dismissed after being charged with possession of child pornography. At the time of dismissal, the employee was the materials manager for one of the company's subsidiaries. The company was a major employer in the local economy, and had a history of contributing to charities that supported youth and community programs. Although the employee had not been convicted of the offence at the time of termination, it appears that he also did not deny his culpability when questioned by the employer. The Court paid particular attention to the decision in Harrop v. Markham Stouffville Hospital, in which the dismissal of a nurse was upheld where the employer established that she had a relationship (outside of work) with a recently discharged psychiatric patient. After considering the facts and the law, the Court concluded (at paras. 30-31):

 

The defendant argues that an employee in the position of Philip Kelly, who is required to work with the general public both acquiring product from suppliers and supplying product to customers, who is required to manage, instruct and discipline people working under him, and who is required to interact collegially with many peers at the management level, has a duty to ensure that his conduct does not adversely impact on any of those activities. It is argued that permitting himself to be placed in the position where he would be charged with possession of child pornography, which fact became almost immediately known to his management peers, co-workers and people who reported to him, and which ultimately became known to the general public when at a later stage the identity of his employer was disclosed, he has failed to discharge the duty that he has to his employer.

 

I agree. Linamar has over a long period of time built up a good reputation which it jealously protects. That reputation includes the promotion of its activities with young people outlined earlier. A company is entitled to take reasonable steps to protect such a reputation and the termination of Philip Kelly was just such a step. The employer has demonstrated just cause on far more than the balance of probabilities.

Where a bank teller was involved in a common-law relationship with a man who had been charged with robbing the bank she worked for, the Federal Court of Appeal upheld the dismissal of the teller. In Canadian Imperial Bank of Commerce v. Boisvert, [1986] 2 F.C. 431, the Court considered the principles cited above in order to determine whether cohabitation with a particular person could amount to cause for dismissal. When considering the employee's duties (i.e., to safeguard the money held by the bank) and her knowledge of her fiancé's activities, the Court held that her continuing cohabitation was relevant to her employment, as her involvement with a robber had the potential to prejudice the bank's interests. Given that she had inside information about the Bank's security arrangements, her relationship with a bank robber was directly incompatible with her duties to her employer.

 

Where a social worker began dating a person who was convicted of a sexual offence and had been ordered to take sexual abuse counselling provided by her employer, the employer was found to have cause to terminate the employment. In Smith v. Kamloops & District Elizabeth Fry Society (1995), 9 C.C.E.L. (2d) 306 (B.C. S.C.), the employer brought its concerns to the employee, and advised her that she would have to choose between her intimate relationship and her job. When the plaintiff did not immediately end the relationship (because it was a private matter separate from her job), the employer terminated her employment citing a lack of judgment and the perception that others might have of how her involvement could impact the performance of her job and the agency's mandate. The British Columbia Supreme Court found that the employer did have cause to end her employment, taking note of the "higher degree of sensitivity and acumen" required in the plaintiff's position. Her failure to bring the issue forward or to see the potential incompatibility between her duties and her relationship reflected seriously flawed judgment, and posed significant risk for the agency's reputation.

 

In Reilly v. Steelcase Canada Ltd., however, an employer was found to not have cause for dismissal where an employee had an extramarital affair with the wife of a colleague. The plaintiff was a district manager, and was responsible for three of the most lucrative customer relationships of the employer. During a convention in Florida, the employee began the affair with his co-worker's wife, which then grew into a steady relationship. Surprisingly, when the co-worker learned of the affair, there was no acrimony. However, whenever the employer found out, through a complaint from one of its customers, it decided that the plaintiff's behaviour was incompatible with his role representing the company. Justice Keith of the Ontario High Court of Justice looked at the handful of decisions that had dealt with similar 'indecorous' conduct, and made the following observation about changing moral standards:

 

This becomes very important because between 1886, for example, when Pearce v. Foster was decided and 1918, for example, when McPherson v. City of Toronto was decided and 1979 when the present case must be decided, there has been a social revolution of enormous proportions. One need only to look at the Divorce Act, 1968 (Can.), c. 24, and the Family Law Reform Act, 1978 (Ont.), c. 2, to realize the gulf that separates current thinking with respect to personal and social relationships that are acceptable today with those that were acceptable in the society of 60 to 100 years ago.

 

The principles of law set out in the cases I have quoted from are indeed as sound as when they were enunciated, but when applied, they must be relevant to present society. ...

 

Bearing in mind the analysis in Pearce v. Foster, the Judge held that "each case must be looked at objectively, in the light of all the facts, and as related to the test of current social acceptability". The employer had acted precipitously in not investigating the matter and determining that the employee's manager was already aware and viewed the matter as a "private affair [that] would have no adverse effect on the operation of his department". Because of its failure to give the employee a chance to be heard, the employer did not have the full story before deciding to dismiss. The plaintiff also adduced evidence that two of his primary customers were very happy with his performance, and were not concerned about the adulterous relationship. In the result, the Court held that the affair did not constitute cause for dismissal as it "was neither prejudicial, nor likely to be prejudicial to the interests or to the reputation of the defendant".

 

In a somewhat similar case, an employee was found to have given cause for dismissal where he had a brief affair with the wife of his employer. In Olsen v. Ritchie Bros. Construction Ltd., [1994] A.J. No. 701 (AB Q.B.), the employee was dismissed after a period of 4 months after his boss learned of the relationship, during which interval he was actively at work for one month before being placed on a 3-month layoff. Given that the wife was also the company's bookkeeper, and the business was a small family-run business in a small community, Justice Hunt found that the employee's conduct was prejudicial or potentially prejudicial to the employer's operation. However, given that the employee was retained for a few months after the employer learned of the affair, the Court concluded that the employer had condoned the behaviour and could not rely on it to support termination.

 

In Dooley v. C.N. Weber Ltd., [1994] O.J. No. 712 (O.C.J., Gen. Div.), an executive was terminated after having consensual relationships with some of his female colleagues. After a previous incident, the employer had warned the employee that he should not have any further relationships with female subordinates, but he persisted and was dismissed. The employer did not have a written sexual harassment policy, and the Court heard evidence that there had been other instances of employees having relationships with co-workers for which they were not punished or dismissed. After reviewing and adopting the reasoning in Reilly v. Steelcase Canada Ltd., Justice Yates held that the employer did not have cause to dismiss Dooley. The Court found:

 

The Company failed to satisfy this onus because the order given by [the President of the Company] to Dooley was not reasonable in today's world particularly where there is no evidence before me that the Company suffered in any manner whatsoever, either financially or otherwise, arising out of the conduct of Dooley while employed at the Toronto location. In addition, the circumstances of this case clearly indicates that the order given by [the Company President] to Dooley relating to his association with women subordinates in Toronto, was not within the scope of his employment with the Company.

 

In the result, the action was allowed.

 

So what are the principles that can be distilled from the case law? Here are a few takeaways:

• Activities by an employee outside the workplace that negatively impact the employer’s reputation in some significant or potentially significant way may be cause for summary dismissal;
• Conduct that is criminal in nature, and which has some direct connection to the employer’s business or reputation is more likely to be cause;
• Acts of dishonesty that reflect poorly on an employee’s integrity are likely to be cause where the performance of the employee’s job depends on trust; 
• Where the employee is a representative of the employer’s “brand” or serves as the public faceof the business, the standards for “decorum” may be higher; and
• Issues of so-called “moral turpitude” are subject to society’s evolving mores and ‘community standards’ in terms of whether particular actions are likely to prejudice an employer’s business or reputation. 

 

Where that leaves Jian Ghomeshi and the CBC remains to be seen, but the limited information that’s currently available paints a picture in shades of grey (50 shades, to be metaphorical). The CBC is a public broadcaster, with a mandate to deliver the news and other required programming throughout Canada. As a public body, it's subject (naturally) to the scrutiny of taxpayers, many of whom are not its biggest supporters.  Mr. Ghomeshi is one of the CBC's stars and regularly delivers strong ratings (albeit not on the order of Hockey Night in Canada). However, the demographic for his former program, Q with Jian Ghomeshi, has typically skewed toward folks in their 20’s. So, who’s moral values does the CBC have to consider? All Canadians? Canadians in their 20s? CBC viewers and listeners?  To what extent should Mr. Ghomeshi expect his private activities to be measured on the yardstick of communal morals and values? And what impact does the popularity of the Fifty Shades of Grey books have on this debate? Does this suggest a shift in societal judgment such that engaging in a BDSM lifestyle or practices does not meet the threshold of moral outrage necessary to constitute cause for dismissal? 

 

While I have my doubts that this matter will ever make it to trial (I doubt that CBC or Mr. Ghomeshi really want all of the dirty laundry aired), it could prove fascinating. If nothing else, it would provide some key insight to others whose careers are in the spotlight as to just how much of their privacy is open to scrutiny by their employers.

 

Do you have questions about employment law? Wonder what constitutes just cause nowadays? Contact Lance Ceaser for guidance and advice.