Canadian Employment Law Today - sample

with Tim Mitchell Ask an Expert NORTON ROSE FULBRIGHT CALGARY Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2017 2 | November 22, 2017 Offensive material on employee's personal social media feeds Question: If an employee posts offensive material on his own social media feeds that affects his interaction with others in the workplace, can the employer order the employee to stop such behaviour or face disciplinary action? Answer: Many of the same principles that apply to cases where an employee is off en- sive at work are applied to cases where an employee is off ensive online. Social media feeds are not protected by privacy legisla- tion, and therefore online posts that aff ect the employer or its employees are fair game for discipline. e level of appropriate disci- pline will depend on the facts of each case, including the post itself, the extent to which it is related to the workplace, and any rele- vant company policies. at being said, courts and tribunals have shown a general interest in upholding an em- ployer's right to discipline for an employee's misuse of social media. e following three cases are illustrative of this trend: • Perez-Moreno v. Kulcyzcki: Online posts that constitute harassing and bullying be- haviour may be grounds for termination. In one case, an employee made Facebook comments and sent messages to co-work- ers calling her manager a "dirty Mexican." In ruling that the comments constituted harassment, the tribunal noted that On- tario's Human Rights legislation applied to workplace related postings on the internet. • Chatham-Kent (Municipality) v. CAW- Canada, Local 127: Online posts that un- dermine an employer's reputation may also be grounds for dismissal. A union em- ployee's termination was upheld for blog- ging about her employer and criticizing the conditions in the retirement home where she worked. is behaviour was held to be insolent, disrespectful, and insubordinate. • "Toronto fi refi ghters lose jobs over sexist tweets," CBC News, Sept. 16, 2013: Online posts that are just plain off ensive may be grounds for discipline. Employers should be wary of these types of posts, as they often result in media scrutiny. For example, one Ontario fi refi ghter's sexist tweet went viral and resulted in negative attention towards the Toronto Professional Fire Fighters' As- sociation. e employee was suspended. e law's interest in curbing online abuse may even go so far as imposing a duty on em- ployers to adequately protect their employ- ees from off ensive online posts. In Toronto Transit Commission and A.T.U., Local 113 (Use of Social Media), Re, Toronto Transit Commission employees were subject to nu- merous hateful tweets online via an employ- er-run Twitter account. e employer was found liable for failing to immediately delete the tweets and block their authors. e best way to mitigate the risks associ- ated with employee online posts is to draft proper social media policies. ese policies should: • Defi ne social media • State that the employer monitors social media • Establish what constitutes appropriate and inappropriate use of social media • Develop and implement reporting proce- dures for inappropriate use of social media • Develop and implement procedures for dealing with incidents and complaints • Set out the consequences of inappropriate use of social media. For more information see: • Perez-Moreno v. Kulcyzcki, 2013 HRTO 1074 (Ont. Human Rights Trib.). • Chatham-Kent (Municipality) v. CAW- Canada, Local 127, 2007 CarswellOnt 5078 (Ont. Arb.). • "Toronto fi refi ghters lose jobs over sex- ist tweets," CBC News, Sept. 16, 2013: http://www.cbc.ca/news/canada/toronto/ toronto-fi refi ghters-lose-jobs-after-sexist- tweets-1.1856677 • Toronto Transit Commission and A.T.U., Local 113 (Use of Social Media), Re, 2016 CarswellOnt 10550 (Ont. Arb.). Addicted employee keeps relapsing Question: If an employee with a drug addiction keeps having relapses despite numerous attempts to accommodate him and just can't stay working, can the employer terminate his employment? Answer: An employee's drug addiction can negatively impact behaviour, performance, and workplace safety. Given that relapses are common and considered a part of drug de- pendency, these employees often have high rates of absenteeism. As tempting as it may be to terminate these employees, employers must fi rst be mindful of their legal obliga- tions. Drug addiction is considered a disabil- ity under human rights legislation and, like any disability, employers have a duty to ac- commodate to the point of undue hardship. A duty to accommodate is the principle that employers should, in good faith, make every reasonable eff ort to support the dis- abled employee. is duty is shaped by medi- cal information substantiating the employ- ee's drug addiction, the employee's specifi c limitations and restrictions in performing their job duties, and confi rmation that the employee is following any prescribed treat- ment plans. It is the employee's responsibility to disclose this information and it is the em- ployer's responsibility to respect the dignity and privacy of the employee. To accommodate, employers should con- sider using temporary employees, off ering fl exible work schedules, and allowing time off for rehabilitation programs. In the context of an employee who continues to relapse, the employer may be required to tolerate absen- teeism over several relapses. In cases of sustained addiction and disabil- ity with failed rehabilitation, employers could also consider entering into a "last chance agreement" with the addicted employee. is type of agreement generally states that the employee agrees her employment will be terminated if she does not abstain from drugs, and waives any right to complain un- der human rights legislation. Despite this strong language, these types of agreements are only persuasive and not determinative of an employer's right to terminate. Employers cannot contract out of the statutory duty to accommodate and therefore they are often required to show additional evidence of ac- commodation beyond the agreement itself. Employers may even be required to have the employee sign a second, or "last, last chance agreement" before the duty to accommodate is discharged. For example, in Seaspan ULC and ILWU Canada, Local 400 (H. (G.)), Re, the adjudica- tor held that a single last chance agreement was not enough to justify the termination of an employee who had relapsed four times in four years. While the arbitrator confi rmed that last chance agreements should be given eff ect unless there are "strong and compel- ling reasons" not to, he ultimately reinstated the employee because the employer did not show that it could accommodate the employ- ee in other, non-safety sensitive, positions. Ultimately, the employer will be able to lawfully dismiss the employee when it can show on a balance of probabilities that ac- commodating the employee has reached the point of undue hardship. An illustrative case is one from the Supreme Court of Canada, where the employee had 960 days of absences over fi ve years due to a disability. e court upheld the employee's dismissal and found that where the employee is unable to resume work in the foreseeable future, undue hard- ship may arise. ASK AN EXPERT on page 7 »

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