Canadian Employment Law Today

January 27, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: This question raises a number of is- sues, including an employer's right to disci- pline employees for off-duty behaviour that may damage the employer's reputation, an employee's right to express their political views and an employer's obligation to pro - vide a safe workplace. While an employer normally doesn't have the right to control what an employee does during their personal time outside the work - place, it is well established that, in some situ- ations, an employer can discipline and some- times even dismiss an employee for off-duty misconduct. The general rule is that to justify discipline or discharge, the employee's con- duct must damage the employer's reputation, affect the employee's ability to perform their duties, cause other employees to refuse to work with the employee or otherwise inhibit the employer's ability to manage and direct its business. A public flaunting of public health proto - cols by an employee may give the employer grounds for discipline or discharge, depend- ing on the nature of the employee's behaviour and the effect on the business. Conduct of this nature may damage the employer's repu- tation, cause disruption in the workplace or interfere with the employer's duty to provide its employees with a safe place to work. An employer bears the onus of proving that an employee's conduct was sufficiently inju - rious to its business or reputation to justify dismissal or disciplinary action. However, the employer does not need to prove that actual damage to reputation occurred. Instead, the question is whether a fair-minded and well- informed person would think the conduct would damage the employer's reputation. The fact that an employee's behaviour was illegal may not be sufficient to justify disci - pline. It is "the extent to which conduct has the potential for significant detrimental im- pact on the employer's business reputation or ability to operate its business effectively" that must be considered, not whether the conduct was immoral or illegal: Badder Bus Service Ltd. v. Reavely. Where an employer learns that an employee is ignoring safety protocols, it should conduct an investigation to ensure it has a complete picture of relevant facts, including any expla - nation the employee may wish to provide. If the employer determines that the employee has engaged in conduct that is harming its business interests, it may wish to begin by ex - plaining to the employee why their behaviour was not appropriate and outlining its expecta- tions moving forward. Failing to go through these steps may make it difficult for the em- ployer to justify discipline in the absence of flagrant, serious or repeated misconduct. An employee's behaviour should be as- sessed in relation to their position and the nature of the employer's business as a whole. Senior employees or those who occupy a position of trust may have a greater duty to uphold the reputation of the employer. For example, in Northwest Territories v. Union of Northern Workers, a "higher standard of off- duty conduct" was applied to a juridical of - ficer in light of the employer's "legitimate in- terest in protecting the reputation of the court system." The nature of business carried out by a public sector employer may also attract a higher standard of conduct. This was the case in Langley (Township) v. C.U.P.E., Local 404, where the arbitrator considered the mu - nicipal employer's interest in "the protection, promotion and advancement of the interests and public welfare of its citizenry" as justifica- tion for discipline. Before an employer disciplines or fires an employee for engaging in a peaceful protest or expressing their views on a political topic, the employer should first consider whether this action could violate the employee's rights under the Canadian Charter of Rights and Freedoms or human rights legislation. Human rights statutes across Canada pre - vent an employer from discriminating against or dismissing an employee because of their political beliefs, unless the employer's actions are justified by a bona fide occupational re- quirement. Also, if the employer is a public body that is subject to the Charter, it must be mindful of the employee's constitutional right to freedom of expression. Where these issues are engaged, an employ - er should conduct a careful analysis to ensure it has appropriately balanced the employee's right to protest and express their political views against the employer's right to protect its reputation and business, as well as the safety and welfare of its workforce. All rele - vant factors should be considered. Before pro- ceeding with discipline or discharge, the em- ployer should be confident that it can point to a significant impact on its business, that it is not disciplining the employee for holding a particular political belief and that its actions have restricted the employee's rights as mini - mally as possible. Under workers' compensation and occu- pational health and safety legislation, an em- ployer has the duty to provide its employees with a safe workplace. This duty includes an obligation to take reasonable steps to protect employees from exposure to workplace haz - ards, including hazards arising from the con- duct or health of other employees. Employers have even more rigorous obliga- tions during the COVID-19 pandemic, which include the development, implementation and enforcement of workplace safety plans, rules and protocols and the careful observa- tion of the applicable statutes, regulations, orders and guidelines. If an employer learns that an employee is ignoring public safety protocols outside the workplace, this will give the employer not only the right but the duty to ensure that the employee's actions are not affecting its ability to provide a safe working environment. Again, the employer should conduct a careful inves - tigation to determine that it has complete facts regarding the employee's behaviour. If the employer determines that the employee has acted in a manner that is contrary to pub- lic safety protocols, it should, at a minimum, keep the employee away from the workplace until the employee can establish through test- ing or other satisfactory means that they do not present a hazard to their co-workers. Finally, employers must always keep in mind their obligation to ensure that an em- ployee's personal information is collected, used and disclosed in a manner that complies with the applicable privacy legislation. For more information, see: • Badder Bus Service Ltd. v. Reavely, [2000] C.L.A.D. No. 648 Can. Lab. Code Adj.). • Northwest Territories v. Union of Northern Workers (1999), 83 L.A.C. (4th) 43 (N.T. Arb.). • Langley (Township) v. C.U.P.E., Local 404 (1995), 46 L.A.C. (4th) 30 (B.C. Arb.). Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Have a question for our experts? Email jeffrey.smith@keymedia.com Ask an Expert HARRIS AND COMPANY, VANCOUVER with Colin G. M. Gibson Employee publicly flaunting pandemic safety protocols Question: If an employee is depicted in social media or news reports engaging in unsafe practices in public during the pandemic or protesting against public health safety protocols, can the employer ban them from the workplace or discipline them? Canadian HR Reporter, 2020 2 | | January 27, 2021 January 27, 2021

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