Canadian Employment Law Today

March 10, 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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Misconduct by both complainant and accused Question: If an employee files a complaint about a supervisor but both are found to have acted inappropriately, can the employer discipline or dismiss the employee for their misconduct? Answer: As is often the case in law, the answer is: It depends. What is the nature of the miscon- duct? Does the employer have policies in place? If so, what do the policies say, and are employees aware of such policies? Would imposing disci- pline or dismissal constitute unlawful reprisal and/or discrimination? Is the dismissal with or without cause? Employers may have policies in place that provide them with the flexibility and discretion to impose discipline for misconduct, even if the supervisor had also acted inappropriately. How - ever, the policies may be restrictive in terms of the discipline that can be imposed. For instance, if there is a strict progressive discipline policy requiring a verbal warning for a first offence, re- gardless of the nature of the misconduct, then the employer would be in breach of its own policy by imposing a written warning for a first offence. Even if the policy is clear that discipline can be imposed, employers cannot discriminate against an employee on the basis of any pro - tected ground under the applicable human rights legislation such as disability, sex or family status. Discrimination would be found even if the protected ground was part of the reason for the discipline or dismissal. In addition, employ - ers cannot engage in unlawful reprisal against employees — for example, a worker cannot be penalized for attempting to assert their rights un- der health and safety legislation. If the employee complains about a supervisor due to alleged breach of health and safety legislation and then the employee is disciplined or dismissed, that could constitute unlawful reprisal. With respect to dismissals, they can be with cause or without cause. Generally speaking, em - ployers can let go of employees at any time for any reason. Assuming that there is no breach of human rights, health and safety or other legisla- tion, the only question is whether the employee is getting the severance to which they are entitled. However, when it comes to just cause for dismiss- al, the threshold is high. Each case will be decid- ed based on its particular facts and a contextual analysis is required to determine whether or not the employer had just cause for dismissal. Put simply, the punishment must fit the crime and, in most cases, simply engaging in misconduct will not warrant dismissal for cause. However, as Stuart Rudner often says: Just cause is not a lost cause. Courts and decision-makers will uphold dismissal for cause where warranted. Employers should be careful and not make assumptions that expose them to potentially significant liability. In many cases, conducting an investigation before dismissal will be a criti - cal step. Employers should also ensure that they have carefully drafted policies in the workplace to protect the organization. The employees should be trained on the policies, the policies should be applied consistently and violators should be dis - ciplined as appropriate. Answer: While remote work is the new normal for many, some organizations are quite behind in drafting and implementing remote work agreements and policies. The following are the essential elements to include in a permanent work-from-home agreement: Ensure compliance with the minimum stan - dards. Each jurisdiction across Canada has legislation outlining the minimum standards with which employers must comply. In order to ensure compliance with the minimum stan- dards, employers should consider how hours of work and overtime will be monitored and compensated, given that it is more difficult to monitor employees when they work remotely. For instance, you can require employees to obtain your approval prior to working any overtime hours. Failing to properly monitor and compensate your employees can result in potential liability. For example, an employee who is working from home may be working overtime and you may, knowingly or unknow - ingly, fail to provide them with the required overtime pay. Expenses and reimbursements. Consider what equipment an employee may need to work from home and whether you will be provid- ing it, reimbursing the employee for the cost or whether the employee will be responsible for obtaining it. Address health and safety concerns. Employ- ers are obligated to take every precaution rea- sonable in the circumstances to protect their workers. In the context of a permanent work- from-home arrangement, employers should be mindful of unique health and safety concerns that may arise, such as back pain from working on a couch. Employers should require employ - ees to immediately report any "work-related" illnesses or injuries to the employer that may occur while they are working from home. IP, privacy, security: Protect your intellectual property rights and ensure that privacy and security concerns have been addressed, includ- ing specifying the remote access procedures as well as the confidentiality obligations when speaking with clients or customers while work- ing from home where other family members might be able to overhear the conversation. You should also address confidentiality of elec- tronic information, including basic issues such as who else will have access to equipment and accounts. These issues can be addressed in poli- cies but should be incorporated as terms of the employment agreement. Management rights: Even if you anticipate that the work-from-home arrangement will be per - manent, you can include language in the con- tract to reserve the right to insist that employees attend work physically. Other terms and conditions: Essential terms of a regular employment contract, such as ter- mination clauses, should also be included in a permanent work-from-home agreement. Em- ployers would be wise to seek advice to draft and implement employment contracts, in order to ensure that they are enforceable. Otherwise, the organization could be exposed to significant liability. As an organization, you likely faced many uncertainties in light of the pandemic. How - ever, there are steps you can take to ensure you are not only complying with the law but also be- ing strategic. Having the proper agreements and policies in place is a great way to maximize your rights and minimize your liabilities. Remote work agreements are no exception. Stuart Rudner is the founder of Rudner Law, an em- ployment law firm in Toronto. He can be reached at stuart@rudnerlaw.ca or (416) 864-8500. This ar- ticle was written with the assistance of Nadia Zaman, an associate at Rudner Law. She can be reached at (416) 864-8503 or nadia@rudnerlaw.ca. Have a question for our experts? Email jeffrey.smith@keymedia.com Ask an Expert with Stuart Rudner Canadian HR Reporter, 2021 2 | | March 10, 2021 March 10, 2021 RUDNER LAW, TORONTO Key elements of a work-from-home agreement Question: What are the essential elements to include in a permanent work-from-home agreement with an employee?

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