Canadian Employment Law Today

January 9, 2019

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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Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2019 Accommodating employee who doesn't make an effort Question: If an employer believes an employee isn't making a sufficient effort to help find an accommodation solution, what does the employer need to do before declaring accommodation isn't feasible? with Stuart Rudner Ask an Expert RUDNER LAW TORONTO 2 | January 9, 2019 Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2019 Answer: Time theft can be quite costly for an employer and can, therefore, result in severe consequences. It should result in discipline, which will depend largely on the circumstances. ere are no absolute rules when it comes to discipline and dismissal; even property theft will not necessarily re- sult in dismissal in all cases. As I discuss at length in my book, You're Fired! Just Cause for Dismissal in Canada, while misconduct should result in disci- pline, summary dismissal is reserved for the most egregious circumstances. Once an employer has established that the employee engaged in misconduct, while will require an impartial investigation, then the appropriate discipline can be assessed. is will require a contextual approach which, as our courts have explained, involves a consideration of all relevant factors, including: • e employee's length of service • e employee's past disciplinary history • Any relevant policies • e employee's response when confronted. In order to show that just cause for dis- missal exists, the employer will have to show that in light of all the circumstances, the re- lationship has been irreparably broken. In many cases, the employee's response when confronted will be the critical factor. If they are dishonest and/or insolent, and refuse to accept responsibility for their actions or provide any assurance that they conduct themselves properly in the future, then it is more likely that summary dismissal will be warranted. Stuart Rudner is the founder of Rud- ner Law, an employment law firm in Markham, Ont. He is the author of You're Fired: Just Cause for Dismissal in Canada published by omson Reuters Canada. He can be reached at stuart@rudnerlaw. ca or (416) 864-8500. Answer: We work with clients all the time to address situations like this. For some rea- son, many employees are of the view that they can demand accommodation and then sit back, refusing to be part of the process or provide documentation while expecting accommodation. Sometimes, they refuse to disclose any information at all under the mistaken belief that their privacy rights will protect them. As we often tell our clients, and anyone else that will listen, the accommodation pro- cess is meant to be an ongoing dialogue be- tween the employer and the employee. If the employee is represented by a union, they will also be a part of the discussion. And in many cases, it will be most efficient to involve the employee's medical professionals. e duty to accommodate arises in many contexts, including disability, childcare ob- ligations, and addiction. Employers should have a clear policy in place which confirms their commitment to accommodation and reminds employees of their role in the pro- cess. Regardless of the context, we advise all employers to have a standard process for responding to requests for accommodation. Once an employee requests accommoda- tion of any kind, the employer should begin the process of • Assessing whether there is a legitimate need that must be accommodated and, if so, • e accommodation options available. e first step will require that the employ- ee provide appropriate documentation of the need for accommodation. While many employers are hesitant to require this, fear- ing that they will breach the employee's pri- vacy rights, this fear is generally baseless. An employer is entitled to know the limitations on the employee's ability to carry out her job- related duties. If there are limitations, then accommodation may be required. e em- ployer can then assess whether accommo- dation is feasible within the limits of undue hardship and, if there is more than one way to accommodate, assess which will be most appropriate; the employee does not get to choose. If an employee refuses to provide suffi- cient information, she should be given clear warning that without that information, the request for accommodation cannot be ad- dressed. If, as is often the case, the employee is off work, then her absence may be unau- thorized. In some cases, we have worked with our clients to impose discipline and even dismissal when an employee is off work but refuses to provide documentation to support the absence or need for accommo- dation. The seriousness of time theft Question: Is time theft by an employee — such as not working while being paid during business hours — considered as serious as theft of an employer's physical property? Both cost the employer money. WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as pay equity audits, marijuana in the workplace, and dealing with sexual harassment in the #MeToo era. To view the webinar catalogue, visit

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