Human Resources Professionals Association
February 8, 2017Hamilton, ON
Presented by
Cody Yorke
Off-Duty ConductManagement, Discipline, and Dismissal
Disclaimer
The user is authorized to use this presentation for the user’sown needs only, and is not authorized to make copies thereoffor sale or for use by others.
The information provided in this presentation is in respect ofthe law of the Province of Ontario only and is intended asgeneral legal information only. This presentation is notprovided for the purpose of providing legal advice or acomplete statement of the law on the particular topics. Everysituation is unique and involves specific legal issues.
If you would like legal advice with respect to the topicsdiscussed in this presentation, we would be pleased to assistyou.
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Introduction
Rudner MacDonald LLP
Toronto and Markham
Advise both employers and employees
Work with clients to proactively deal with issues and also put out fires
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Why Should We Be Concerned About Off-Duty Conduct?
Organizational reputation
Share value
Widespread use of social media
Things can reach much further than their intended audience
Balance employer interests and employee rights and privacy
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Recent Incidents
Mr. Lube employee: “Any dealers in Vaughan wanna make a 20sac chop? Come to Keele/Langstaff Mr. Lube, need a spliff or two to help me last this open to close.”
Hydro One employee: “F*** her right in the P****” on live television.
Jian Ghomeshi
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Case law
• Lougheed Imports Ltd (West Coast Mazda) v. UFCS Local 1518 (2010)
– employees fired for postings on Facebook
– posting included homophobic slurs and threats online against bosses
– “don't spend your money at West Coast Mazda as they are crooks out to hose you and the shop ripped off a bunch of people I know”
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Case law
Merritt v. Tigercat Industries (2016)– Employee was arrested, at work, on two counts of sexual assault
against minors – did not involve any employees of Tigercat
– Employer initially suspended the employee
– When the employee returned to work, a female employee reported that she felt uncomfortable with the Plaintiff at work, because he had made inappropriate advances on her a few years earlier, at the Plaintiff’ farm
– Employee was dismissed for cause
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Privacy issues
General recognition of employer right to monitor usage
Corporate email or otherwise
Searching company-owned equipment
Cole and other decisions
Have a policy
Include statement in contract: don’t put it on our system if you don’t want us to see it
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Case law
• R v. Cole
• Expectation of privacy even over documents on employer-issued computer
• Criminal case
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Managing the Problem Before it Arises
Two main tools:
– Employment Contracts
– Policies
Purposes:
– Prevention
– Creating Management Rights
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What to include
Social Media Policy
Use of Company Property
Privacy
Non-Disparagement
Duty to act in Company’s interests
Mission Statement/Statement of Values
Implementing Policies
Have a policy
Incorporate policies into employment contracts
Use clear and unambiguous language
Keep the policy up to date
Publicize the policy
Make employees aware of concerns
Ensure supervisors and managers are aware of the policy and how to monitor
Monitor behaviour
Discipline violators
Can you Discipline for Off-Duty Conduct?
Generally, what employees do on their own time is their business
Unless– The conduct renders the employee unable to perform his or
her duties satisfactorily
– The conduct interferes with the efficient management of the operation or workforce
– The conduct leads to a refusal or reluctance of other employees to work with him or her
– The conduct harms the general reputation of the Employer, its product or its employees
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Types of Discipline
Warning– Verbal (and documented in writing)
– written
Suspension– Paid
Dismissal– With just cause
– Without just cause
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Warnings/Suspension
Set out misconduct
Refer to policies which were violated
Explain the impact of the misconduct
– Company’s reputation
– Other employees
Set expectations
Warn that further misconduct may lead to termination with just cause
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Two types of Dismissal
Dismissal for just cause – no further obligation to the employee
Dismissal without cause – need to assess employee’s entitlement to notice/pay in lieu/severance
No in-between or “near cause”
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Dismissal for Just CauseMcKinley v. B.C. Tel, Supreme Court of Canada, 2001:
[T]he test is whether the employee’s dishonesty gave rise to a breakdown in the employment relationship. This test can be expressed in different ways. One could say, for example, that just cause for dismissal exists where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or indirectly inconsistent with the employee’s obligations to his or her employer. “In accordance with this test, a trial judge must instruct the jury to determine: (1) whether the evidence established the employee’s deceitful conduct on a balance of probabilities; and (2) if so, whether the nature and degree of the dishonesty warranted dismissal”.
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Dismissal for Just Cause
Capital Punishment of Employment Law
Employer must prove:
1. that the alleged misconduct took place, and
2. that the nature or degree of misconduct warranted dismissal, bearing in mind all relevant circumstances
Proportionality is guiding principle – “punishment must fit the crime”
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Dismissal without Cause
Entitlement to Notice of dismissal or pay in lieu
Two sources of entitlement– Employment Standards Act, 2000
– Common Law
Can contract our of common law
Cannot contract out of the ESA
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Cody Yorke
416.640.6402www.rudnermacdonald.com
Blog: rudnermacdonald.com/blog
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