Canadian Employment Law Today

July 24, 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 July 24 2013:celt 467.qxd 13-07-09 2:44 PM Page 2 July 24, 2013 Ask an Expert with Tim Mitchell Norton Rose, Calgary Have a question for our experts? Email ■ DISCIPLINE: Threshold for dismissal for code of conduct violation Question: If an employer has a specific code of conduct that prohibits certain behaviour, is there a lower bar for dismissal rather than other forms of discipline for violations of the code? Answer: The bar may seem lower in a sense, but if the employer is being precise in its communications to its employees, it would not characterize the situation in those terms. A better way to put it is that while the bar for dismissal remains at the same level, the employees have been put on notice that the specific behaviour shall be viewed as serious enough to reach that bar. This is a subtle distinction, yet in employment law terms, it is an important one. The bar for summary dismissal is a high one for employers to meet and little can be done to lower it. However, an employer has the ability to create reasonable rules to regulate its workplace and the right to expect that its employees obey reasonable orders in matters of substance. For example, rules requiring safe operations or refraining from conflicts of interest are regarded as being fundamentally important to employers. In many cases, violation of such rules can be considered serious enough to constitute a repudiation of 2 the employment contract. Where a company code of conduct is clearly written and communicated to employees, its breach will strengthen the employer's case that the bar for dismissal has been met. However, no matter how effectively the rules are written and communicated, the code will not, by the very fact of its existence, elevate a parking violation into a capital case. Trivial misconduct and isolated transgressions of a less serious nature will not justify dismissal without aggravating circumstances like extensive prior discipline. Codes of conduct can be effective tools for establishing that certain behaviour is incompatible to continued employment, subject to the reasonableness of the prohibitions and of the consequences ascribed to them. ■ ACCOMMODATION: Learning about employee's addiction through gossip Question: Is there a duty to accommodate if an employer learns of an employee's addiction through office gossip with no proof that it's true? We don't approve of gossip and feel acknowledging it would encourage more gossip in the workplace. Answer: What is the employer's duty when notice of an employee's substance dependency comes to its attention through workplace gossip? This is a delicate issue. On the one hand, an employer does not want to be seen as promoting loose talk amongst employees of their colleagues' personal issues. On the other hand, an employer should not simply turn a blind eye to reliable information that an employee is suffering from a debilitating addiction that could affect work performance. An employer does so at its own risk. Generally speaking, in order to trigger an employer's duty to accommodate, it is incumbent on an employee to first establish that she has a condition requiring accommodation. However, where there is reason to suspect a medical condition may be impacting an employee's ability to work, the employer's failure to make inquiries into these suspicions may constitute discrimination. This duty to inquire was recently addressed by the British Columbia Human Rights Tribunal in Mackenzie v. Jace Holdings Ltd. The employer's duty to inquire can be especially pertinent in cases of strange behaviour suggesting mental disability. For example, in Canada Safeway and UFCW, Local 401 (1992), an employer's argument of dismissal for poor performance was rejected by an arbitrator on the grounds that the employer should have investigated whether the employee's performance deficiencies were rooted in a mental illness. The arbitrator's decision was affirmed by the Alberta Court of Appeal. In the situation at issue, the employer should not assume it will be relieved of its duty to inquire merely because it learned of the employee's condition second-hand. An employer turning a deaf ear to credible information that an employee suffers from a disability leaves itself vulnerable to a finding of failure to accommodate in the event of a grievance or human rights complaint. In these circumstances, the employer also seems concerned about the secondary issue of workplace gossip and may be especially alarmed if it is pervasive. The issue might be effectively addressed in many such cases on an informal basis. A simple conversation may be enough to put an end to the loose talk. There can be situations, though, where workplace gossip is serious enough to merit discipline, especially where the issues being discussed are of a sensitive or hurtful nature or where the scuttlebutt is contributing to a poisoned work environment. Employees should be encouraged to be discreet in bringing personal issues affecting the workplace to the attention of Published by Canadian HR Reporter, a Thomson Reuters business 2013 Continued on page 9

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