Canadian Employment Law Today

June 26, 2013

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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CELT June 26 2013.qxp:celt 467.qxd 13-06-17 10:36 AM Page 8 June 26, 2013 TELUS discovers technician's sketchy past THIS INSTALMENT of You Make the Call features a TELUS employee whose sketchy past was discovered by his employer. In March 2011, the director of customer solutions delivery for TELUS in Vancouver read a newspaper article about criminal proceedings based on charges of sexual assault and gross indecency against a former RCMP officer involving incidents with three young boys between 1985 and 1991. The director recognized the man as a TELUS installation and repair technician — hired in 1997 — who had not mentioned the charges when he was hired. Published biweekly 22 times a year Subscription rate: $299 per year Customer Service Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations@ Website: Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Publisher: John Hobel Managing Editor: Todd Humber Editor: Jeffrey R. Smith E-mail: ©2013 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GT #897176350 Publications Mail Registration No. 40065782 8 tion with customers at risk. Though the technician had a good employment record over his 14 years with the company, TELUS terminated his employment on April 11, 2011. How would you handle this case? Read the facts and see if the judge agrees TELUS asked the technician about the article and the technician admitted it was about him and he couldn't talk about it. They agreed he should take time off work to deal with the charges and TELUS would consider its next steps during that time. The company encouraged the technician to take care of himself and things would be dealt with when he returned to work in a couple of weeks. However, the day before the technician was scheduled to return to work, TELUS learned his bail conditions included a stipulation he was to "have no contact with any person under the age of 14 years unless in the presence of that person's parent or guardian." This was of concern because the technician's job involved entering customers' homes and this could affect his job duties. The technician said his job wasn't affected and his own policy was that no children would be alone with him while he was working. This followed TELUS' customer contact policy, though the technician said he was "self-governing" on the issue. The director pointed out that the TELUS ethics policy stipulated employees were required to notify TELUS of any legal matter "which has the potential" to affect their job, and they were "expected to act honestly in all dealings, comply with the laws and regulations governing our businesses, and maintain an ethical work environment." The technician denied knowing of this policy — though it was included in TELUS' ethics training course material — and said "they were historical allegations" that didn't relate to his job. The company decided that by failing to notify it of the charges and "self-governing" himself so he didn't violate his bail conditions on the job put its reputa- You make the call ✓ ❑ Did TELUS have just cause to dismiss the technician due to the charges? OR ✓ ❑ Were the employee's legal troubles not enough to warrant dismissal? IF YOU SAID TELUS did not have just cause to dismiss the technician, you're correct. The arbitrator noted the technician argued the charges happened before he worked for TELUS and didn't involve work-related activities, so there was no potential for harm — which the ethics policy focused on. However, the arbitrator found this "was in no way a realistic assessment of the risk to TELUS" — given the newspaper coverage — and the technician was more concerned with saving himself from embarrassment. "The price of maintaining that hope (that news of the charges would surface) was that (the technician) denied TELUS the opportunity to manage and protect against the risk," said the arbitrator. "The employer's interest is in managing the risk of disclosure by proactive steps, not in managing the aftermath." However, the arbitrator considered the technician's 15 years of good service, the length of time since the charges, and his immediate acknowledgement of them when confronted, but the failure to disclose the charges wasn't a spur-ofthe-moment decision. Rather, it consisted of dishonesty maintained over those years. Though TELUS place high value on its reputation and its ethical standards, the arbitrator found the offence was serious enough to warrant severe discipline but not dismissal. The arbitrator reinstated the technician and substituted a two-month unpaid suspension in place of the dismissal. See Telus Communications Inc. v. T.W.U., 2012 CarswellNat 4796 (Can. Arb.). Published by Canadian HR Reporter, a Thomson Reuters business 2013 CELT

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