Canadian HR Reporter

CANADIAN HR REPORTER DECEMBER 2018 INSIGHT 31 Tim Mitchell TOUGHEST HR QUESTION Lying will only make it worse Downfall of long-time Tory politician Tony Clement serves as lesson for employers November spelled the downfall of long- time Conservative politician Tony Clement, and the progression of the incident and its aftermath can serve as a lesson for employers everywhere. Clement, who has been a key player in Tory party politics for decades — both provincially and federally, had most recently served as the Conservative Party's justice critic, as well as on a num- ber of key party committees. While not currently at the forefront, Clement's profile is recognizable to Canadians as the former federal minister of health under Stephen Harper's govern- ment, and previously as a long- time Ontario MPP. He currently represents the federal district of Parry Sound-Muskoka. On Nov. 6, it was revealed that Clement was embroiled in what was first labelled an extortion scandal, where he was described as sending sexually explicit im- ages and video of himself to an individual whom he believed to be a consenting female, who was now extorting him. Clement voluntarily stepped down from his positions in cau- cus while an RCMP investiga- tion was being conducted, but vowed to stay on as a member of Parliament. At the time, the incident was painted in the media as isolated, and Conservative leader An- drew Scheer described Clem- ent's actions as a "terrible lapse in judgment." However, less than 24 hours later, Scheer revealed that the incident was in fact not isolated, and Clement was ousted from the Conservative Party of Canada as the number of allegations of im- propriety increased. Barring some unexpected vindication, Clement's career in public life has eff ectively come to a disgraceful end. While the story can read as yet another fall in an exhaustive list of once-powerful men whose misdeeds have been uncovered in the #MeToo era, there are several takeaways to this story for em- ployers and employees moving forward: e public face is rarely (if ever) private While politics is a unique arena, off -duty conduct scarcely goes un- noticed in any workplace forum, and can be potentially damaging should an employee's actions or personality be intrinsically tied to an employer's brand. A cashier who sends sexually explicit images from home on her own time, with no nexus to the workplace, may not have an impact on her employer. However, an employee who serves as one of the faces of his corporation can no longer achieve the anonymity once possible be- fore the advent of social media. Well-drafted and properly disseminated workplace poli- cies can help employers penalize off -duty conduct that aff ects the employer's public image, with the most serious conduct subject to penalties up to and including dismissal. Investigations critical ere is no indication at this time that the incidents involving Clem- ent happened at work. However, employers have a duty to maintain a workplace free from harassment, including sexu- al harassment, and to thoroughly and impartially investigate any al- legations relating to said conduct. When an employer fi rst learns of an allegation or incident of ha- rassment (or any misconduct), it is required to take all reasonable measures to conduct a thorough investigation. Employers that fail to do so may be penalized severely, either un- der statute or at common law, for their failure to adequately protect employees and act in good faith. Honesty matters Finally, the values of honesty and fidelity (business fidelity, not marital) are inherent in the em- ployment relationship and intrin- sic to its proper function. Not only did Clement's dis- honesty irreparably damage his relationship with the party and its current leadership group, but the party's eff orts to stay ahead of the story and paint it as one of unlaw- ful extortion later backfi red when the larger truth was eventually revealed. e incident will likely go down as another blemish on the Con- servative party's oft-blustering leadership for its failure to tell the truth from the outset. For employers, an employee's honesty about her misdeeds will go a long way towards salvaging the trust and good faith required in a positive working relation- ship, whereas intentional deceit and defl ection will always refl ect poorly — both on the individual and potentially on the employer. An employee's response when confronted with suspicion of misconduct is often the most important factor in assessing whether summary dismissal will be justifi ed. Dishonesty will give the em- ployer further grounds upon which to argue that the rela- tionship has been permanently damaged. Tony Clement's long political career will now forever carry an asterisk, and perhaps deservedly so. However, his downfall, and his party's slipshod eff orts to mini- mize his misdeeds, are refl ective of the mistakes both employ- ers and employees can make — knowingly or unknowingly — when they fail to meet their respective duties and obligations. Stuart Rudner is the founder of Rudner Law in Toronto. He can be reached at stuart@rudnerlaw.ca. Shaun Bern- stein is an associate at Rudner Law. Recruiting precautions to avoid inducement claims from employees What are the risks when it comes to aggressively pursuing a potential candidate? Question: If a company is interested in recruiting someone from another company, what precautions should it take to avoid potential claims of inducement in the future? Answer: Inducement in this con- text is presumed to be a claim from an employee around the time her employment is termi- nated. In this context, induce- ment arises when an employee is gainfully employed with secure employment and leaves that em- ployment to join a new company. At some point later, the employee is terminated. If the employee successfully claims she was induced, then the appropriate notice period may be substantially increased to account for the period of employment at the past employer. Employers should be aware of particular circumstances when recruiting someone from an- other company. Inducement can cause the past employment to be considered a continuous period of employment for assessing the common law notice period. To avoid these claims, employ- ers must be attentive from the start of recruitment as to the em- ployee's circumstances. If the em- ployee has secure employment at a close competitor, then certain precautions should be taken. First, the recruitment process should not be too aggressive. To assess your risk, consider wheth- er the employee is applying to an open advertisement or has been specifi cally head-hunted. Applications are easier to de- fend against inducement claims than targeted recruitment. When recruiting prospective hires, com- panies should avoid making gran- diose promises about the employ- ment opportunity. Another point of risk for in- ducement in the hiring process is signing bonuses and other fi - nancial incentives. Any cash pro- vided at this stage should come with the express exclusion from inducement. Consider withholding these benefi ts until a certain target is achieved, or attaching them to a discrete reason such as a car allowance. If signing bonuses are normal for the industry or expected in the particular hiring phase a company is doing, then ensure that nobody from the company makes any rep- resentations that the money is of- fered to induce the person to leave his past employment. Consider the industry of the hire. e more comparable op- portunities that exist in the mar- ket, the less likely a claim for in- ducement could be successful, whereas employees who hold unique roles and have unique experiences may have a greater claim for inducement. Most importantly, the employ- ment contract must be drafted carefully and purposefully. e contract should have the employ- ee explicitly acknowledge that he was not induced to leave past employment. e choice of the employee should be clear. e contract will also require a clear termination clause, which should set out a provision to ex- pressly limit the notice period re- quired at termination and exclude the common law entitlement. e company should be clear and concise in the terms of the contract, ensuring the employee understands the meaning of the termination clause. Avoid giving advice to a pro- spective hire regarding his current employment obligations and en- courage him to seek independent advice. It helps to use a third-party re- cruitment fi rm to create a degree of separation between your own business activities and the new hire, but if this is not feasible, then exercise caution. Remember that the risk level is higher with gainfully employed hires making lateral moves into similar positions and industries. Tim Mitchell practises management- side labour and employment law at Norton Rose Fulbright in Calgary. He can be reached at (403) 267-8225 or tim.mitchell@nortonrosefulbright. com. Off-duty conduct can be potentially damaging should the employee's actions or personality be intrinsically tied to that employer's brand. Consider whether the employee is applying to an open advertisement or has been specifi cally head-hunted. Downfall of long-time Tory politician Tony Clement serves as lesson for employers November spelled the downfall of long- time Conservative politician Tony Clement, and the progression of the incident and its aftermath can serve as a lesson for employers everywhere. Clement, who has been a key player in Tory party politics for decades — both provincially and federally, had most recently served as the Conservative Party's justice critic, as well as on a num- Stuart Rudner and Shaun Bernstein GUEST COMMENTARY

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