Canadian Employment Law Today

with Meghan McCreary Ask an Expert MACPHERSON LESLIE & TYERMAN REGINA Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2016 2 | November 9, 2016 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com 2 | November 9, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Employee refusing to sign disciplinary letter Question: If an employee refuses to sign a disciplinary letter because he disagrees with it, can the misconduct be considered more serious in a progressive disciplinary process? Waiver for employees in romantic relationship Question: Can an employer ask employees to sign a waiver stating that if they enter a romantic relationship with another employee, the employer is absolved of all liability regarding potential harassment claims? Answer: A waiver purporting to absolve an employer of all liability regarding potential harassment claims will provide an employer with no more protection than the paper it was written on. Canadian courts, including the Supreme Court of Canada, have determined time and time again that as a matter of public policy employers cannot contract out of public interest rights such as those contained in human rights and occupational health and safety legislation. See Ontario (Human Rights Commission) v. Etobicoke (Borough) and N.A.P.E., Local 3201 v. Newfoundland. Human rights and occupational health and safety legislation set a fl oor of protec- tions that employers at a minimum must provide. In this regard, an employer is free to provide employees with protections greater than those required by law, but under no circumstances can an employer provide em- ployees with less. In Canada, this fl oor requires employers to take reasonable steps to prevent, investigate, and deter harassment in the workplace. Em- ployers typically satisfy these duties by im- plementing harassment policies, thoroughly investigating complaints, and by imposing discipline when complaints are substanti- ated. In this regard, if an employee alleges that he has been harassed in the workplace by his co-worker/romantic partner, simply having a waiver relating to harassment will not absolve the employer of all liability if it is shown that the harassment in fact occurred and the employer did not fulfi ll its duties as required by law. While such a waiver may stand as evidence that the relationship between the employees was consensual, and therefore may infl uence a court or tribunal's ultimate fi nding as to whether or not the impugned conduct was in fact harassment, a waiver will do nothing to absolve an employer of liability if it is de- termined that harassment occurred and the employer neglected its duties in reliance on such a waiver. For more information see: •See Henry v Foxco Ltd., 2004 CarswellNB 127 (N.B. C.A.). •Pacifi c Press v C.E.P., Local 115-M, 1997 CarswellBC 3029 (B.C. Arb.). •Ontario (Human Rights Commission) v. Etobicoke (Borough), 1982 CarswellOnt 730 (S.C.C.). •N.A.P.E., Local 3201 v Newfoundland, 1996 CarswellNfl d 133 (S.C.C.). Meghan McCreary is a partner practicing la- bour and employment law with MacPherson Leslie & Tyerman LLP in Regina. She can be reached at (306) 347-8463 or mmcreary@ mlt.com. Answer: An employer has the right to direct its workforce and an employee has an obli- gation to obey an employer's lawful orders. On this basis, an employee's refusal to sign a disciplinary letter in the face of a direct order from his employer can constitute in- subordination in certain circumstances, and therefore can result in further or more seri- ous disciplinary measures pursuant to the employer's progressive discipline process. Insubordination means an employee's intentional refusal to obey an employer's lawful and reasonable orders. In order to constitute insubordination, three essential elements must be present: • ere must be a clear order understood by the employee. • e order must be given by a person of au- thority. • e order must be disobeyed. See Henry v Foxco Ltd. and Pacifi c Press v. C.E.P., Local 115-M. When determining whether or not the em- ployee's refusal to sign the disciplinary letter amounts to insubordination, it is critical to consider what exactly the employer is asking the employee to acknowledge with his signa- ture on the dotted line. An employer cannot force an employee to accept or agree to the contents of a disciplinary letter, and there- fore an employee's refusal to sign a letter ac- knowledging such would not likely constitute insubordination. However, if an employee is simply being asked to acknowledge receipt of the disciplinary letter and is not being asked to accept or agree with its contents, an em- ployee's refusal to sign in disregard of the em- ployer's explanation and order to do so would likely constitute insubordination. If an employee is asked to sign a disci- plinary letter acknowledging receipt of the letter only and the employee refuses on the basis that he disagrees with the content of the letter, the employer should explain to the employee that his signature is acknowl- edging receipt of the letter only and is not an indication of the employee's agreement or disagreement with its contents. Once the employer has informed the employee of this, the employer should order the em- ployee to sign the letter and inform him that refusal could result in further discipline. If the employee continues to refuse despite these explanations, warnings, and orders, the employer will likely have grounds to im- pose further discipline in accordance with its progressive discipline policy on the basis of insubordination. However, the refusal to sign to acknowledge receipt is a separate in- cident of misconduct; it does not escalate or aggravate the initial misconduct for which the employee is disciplined. It is merely an- other disciplinary event in the catalogue of the employee's disciplinary history and the progressive discipline process. An employee only has to acknowledge receipt of the letter, not agree with it. Refusal to acknowledge could be insubordination. Employers and employees can't contract out of public interest rights.

• Cover