Canadian Employment Law Today

Canadian Employment Law Today | 7 Canadian HR Reporter, a Thomson Reuters business 2019 More Cases to the employee. If an employer wants the ability to investigate employee use of com- pany-issued devices, it should reserve the right to do so in its privacy policy. e employer must also consider the necessity and scope of the investigation. A recent Order of the Office of the Infor- mation & Privacy Commissioner of Brit- ish Columbia, Order F07-18: University of British Columbia, addressed both these is- sues. e order provided that the employer should first raise their concerns with the employee before resorting to an invasive investigation, and must use the least intru- sive method available to obtain only infor- mation which is relevant to the suspected misconduct. Obtaining excess personal in- formation — in that case, personal banking information — was found to be a violation of the employee's privacy. A related consideration is the issue of ad- missibility of evidence in a discharge or dis- cipline proceeding. Although there is some variation in how adjudicators in different forums approach this analysis, in general, assessing admissibility involves balancing the employer's legitimate business needs against the employee's privacy interests. e leading arbitral authority, Doman Forest Products Ltd. v. InternationalDo- man Forest Products Ltd. v. I.W.A., Local 1-357, provides that the employer must demonstrate the investigation was nec- essary, it was conducted in a reasonable manner, and there were no alternative methods available to obtain the evidence sought. If an employer wishes to use their investigatory material as a basis for disci- pline, this test must be met. See Doman Forest Products Ltd. v. I.W.A., Local 1-357, 1990 CarswellBC 2012 (B.C. Arb.). Colin G. M. Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ harrisco.com. « from ASK AN EXPERT on page 2 Consider necessity and scope of investigation WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as navigating benefits during the notice period, discipline and dismissal for off-duty conduct, Ontario's employment standards changes, and diversity in the workplace. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. environment. He also felt Jaffar was trying to turn new employees against YMS. e vice-president spoke with Jaffar on several occasions about the company's concerns, but Jaffar didn't improve. YMS installed new garage doors at the car wash in March 2017 with a planned in- stallation of air cylinders that would allow them to be opened and closed by remote control. In April, a rope was put on the doors to help lower them for cleaning until the cylinders were put in. Worker erupted after order to clean doors On April 13, YMS' vice-president asked an employee to tell Jaffar to clean the doors. If Jaffar didn't have time, he was to leave a note for another employee to do it. How- ever, the employee told the vice-president Jaffar was "acting crazy" and yelling that it wasn't his job to clean the doors. e vice-president discussed the matter with Jaffar, who said the doors couldn't be closed safely without a rope. Jaffar was re- minded a rope had been installed, but Jaf- far angrily replied that it wasn't his job to clean the doors or tell someone else to clean them. e vice-president was shocked at Jaffar's manner of speaking to him and de- cided his disrespectful, insubordinate be- haviour warranted dismissal. e vice-president met with Jaffar the next business day, April 17, and terminated his employment. e termination letter cit- ed Jaffar's "extremely negative behaviour" on April 13 including his unco-operative, defiant, and disrespectful attitude towards the vice-president. When considered with his history of bad attitude, poor perfor- mance, and insubordination — including the prior disciplinary letter — YMS deter- mined it had just cause for dismissal. Jaffar filed a human rights complaint al- leging discrimination and that his termina- tion was because of his age. He pointed to the August 2016 disciplinary letter that called him a "grumpy older guy" and said the vice- president didn't want to listen to safety is- sues — relating to his concerns cleaning the garage door — raised by an "older guy in the company." Jaffar also claimed YMS wanted to hire a younger, cheaper employee to re- place him — after his termination, YMS placed an ad for a car wash attendant with a starting wage significantly lower than what Jaffar had been paid. YMS filed an application to dismiss Jaffar's complaint on the grounds that it could not succeed in a full hearing before the tribunal. Misinterpreted comment e tribunal found that the vice-president did not call Jaffar a "grumpy older guy" in the disciplinary letter, but instead was ref- erencing comments made by others in rela- tion to Jaffar's behaviour and service. is was "a credible, non-discriminatory expla- nation," said the tribunal. e tribunal also found that there was no evidence the vice-president called Jaf- far an "old man" and even if he did, it may have been inappropriate but didn't meet the standard of being inherently damag- ing to Jaffar's dignity or create a difficult work environment for him. In addition, Jaffar provided no evidence or reliable claims that there were multiple instances of him suffering a disadvantage or negative work environment because of age-related comments or treatment during the normal course of his job. As for the job ad, the tribunal said it made sense for a new employee to start at a lower wage, regardless of age. A new recruit would have fewer years of service and have less ex- perience than Jaffar, so age had nothing to do with the job posting. "On its face, the job ad simply states that YMS is looking for a full-time car wash at- tendant," the tribunal said. "Accordingly, YMS has advanced a credible, non-discrim- inatory explanation to rebut any inference of discrimination flowing from the job ad." e tribunal agreed with YMS that Jaf- far would not be able to prove YMS dis- criminated against him, as it was more likely his termination of employment was due to poor performance issues and in- subordination, not his age. Jaffar's human rights complaint was dismissed. For more information see: • Jaffar v. Yaletown Mini Storage (No. 2), 2019 CarswellBC 485 (B.C. Human Rights Trib.). « from GRUMPY on page 1 No evidence of disadvantage at work due to age

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