Canadian HR Reporter

CANADIAN HR REPORTER CANADIAN HR REPORTER April 7, 2014 April 7, 2014 INSIGHT INSIGHT 19 19 Behaving badly at the softball game Behaving badly at the softball game What are employer's liability concerns, disciplinary options when employees are off -duty? What are employer's liability concerns, disciplinary options when employees are off -duty? QUESTION: How much does an employ- ee's conduct away from the workplace, but related to the employer — such as playing on a company-sponsored softball team — fall under the employer's jurisdiction? Can an employer discipline the employee or be liable for any misconduct in such circumstances? Answer: It is generally recog- nized that an employee's off -duty conduct can attract discipline if the conduct interferes with and prejudices the employer's busi- ness interests and operations, or its public reputation. ere are a number of cases in Canada where summary dismissal was found justifi able for off -duty conduct: • A bank teller who was having an extracurricular relationship with a bank robber, thereby jeopardiz- ing the employer's interests. (Ca- nadian Imperial Bank of Com- merce v. Boisvert.) • A social worker who did not reveal to her employer that she had become involved with a man convicted of a sexual off ence who was receiving sexual abuse coun- selling through the employer. (Smith v. Kamloops & District Elizabeth Fry Society.) • An employee at one of the City of Guelph's largest employ- ers — which actively promoted and contributed to the commu- nity and elementary school-aged children's programs — who was charged with accessing and pos- sessing child pornography. (Kelly v. Linamar Corp.) We know that what's con- sidered the "workplace" may extend to company-sponsored or supported social events held during non-working hours. Em- ployer codes of conduct often address that. In such circumstances, an em- ployee's off -duty conduct that is employer-related can justify dis- charge more easily than true off - duty conduct. Hockey tournament highlights An interesting 1981 decision in- volved an employer-sponsored hockey tournament. As it turned out, the off-duty conduct, al- though having an impact on the employer, was not suffi cient to uphold the discharge. In Harris v. Eastern Provincial Airways (1963) Ltd., a 30-year-old employee claimed wrongful dis- missal because of incidents that occurred during his off -duty time. Eastern Provincial employees or- ganized a hockey tournament with teams and guests invited from several other operations of Eastern Provincial. e company made a fi nancial contribution and provided trans- portation. In all other respects, the activity was organized by a committee of employees. is employee consumed ex- cessive amounts of alcohol and was jumping up and down on a hotel bed with a co-worker. e bed broke. Later, the employee was in the vicinity of the hotel where a glass door was broken, but was not an active participant. The worker also stepped in to help a co-work- er during a fi ght. While the employer dismissed the employee, the court con- cluded the misconduct was iso- lated and termination was too heavy-handed: "While the (employer) had cause to be annoyed with the (worker) for not setting a better example to his fellow employees, his misconduct did not diminish his ability to fulfi ll the conditions of his employment as station manager, duly and faithfully, nor was it, to any appreciable extent, prejudicial to the interests or rep- utation of the defendant," said the court. "He should not have been responsible for the breaking of the glass or the fi ghting. e rest did not justify his dismissal without notice." Protecting your reputation What is the best way to protect an employer's public reputation or business interests in these cases? In some cases, such as Kelly v. Linamar, no policy would be required to uphold termina- tion if the employer can show the employee's activity could harm its public reputation or business interests. Generally speaking, a policy setting forth what is expected of employees at company-sponsored events, or a code of conduct that clearly spells out expectations and disciplinary consequences, may help to deter improper behav- iour or provide some force to the disciplinary response if improper behaviour occurs. For more information see: • Canadian Imperial Bank of Commerce v. Boisvert, 1986 Car- swellNat 206 (Fed. C.A.). • Smith v. Kamloops & District Elizabeth Fry Society, 1995 Car- swellBC 162 (B.C. S.C.). • Kelly v. Linamar Corp., 2005 CarswellOnt 6611 (Ont. S.C.J.). • Harris v. Eastern Provincial Air- ways (1963) Ltd., 1981 Carswell- Nfl d 164 (Nfl d. T.D.). Brian Johnston is a partner at Stew- art McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohn- ston@stewartmckelvey.com or, for more information, visit www.stewart mckelvey.com. Brian Johnson Toughest HR Question HR data: Ready to be part of next 'big' thing? HR data: Ready to be part of next 'big' thing? e idea of "big data" is to gather input from multiple data sources into a single analytical tool. And the term big really does mean big — we're talking petabytes, not gigabytes. That definition automatically excludes all but the largest orga- nizations — which represent the smallest percentage of the busi- ness community. Medium-sized and small organizations simply do not have enough data for the term to apply. But the concept of integrated data is just as important (or per- haps even more important) for smaller-scale organizations. e ability to analyze opera- tions and sales, predict trends, make comparisons with market intelligence, understand and manage labour distribution — all of these are essential to an orga- nization's degree of success. As valid as the idea of big data or integrated data may be, its foundation must include accu- rate, reliable data available to all who need it in a timely way. You will fi nd very few human resourc- es practitioners who believe their organization has that foundation. In almost all organizations, the information tools for human re- source data are a mishmash of of- fi cial automated systems, quasi- unofficial automated systems, spreadsheets and various hard- copy documents, including notes in a supervisor's back pocket. is is completely analogous to the idea of business process engineering (or re-engineering). Business processes are not nor- mally "designed" — they emerge over time as someone somewhere has a need for something to occur. At no point does anyone provide a complete overview by revisiting the process from the defi ned need to the fi nal output. Why is data not managed properly? When we look into a typical or- ganization's human resource data, we usually discover that data is not managed. ere are a number of reasons and explanations for this: •There is no documented data management plan. is inevita- bly means there will be gaps and overlaps, plus issues of complete- ness, timeliness and accuracy. How many versions of one data element exist in a typical com- pany? •Whatever limited definition that does exist is contained in the design of the automated sys- tems (almost always several un- integrated or poorly integrated systems). And even if every au- tomated system has a complete and accurate data dictionary — and most don't — no one has ever done a thorough map of it all. • ere is no structured plan of data ownership. For example, every data element is assigned to someone (or some unit) who is the custodian of it. e concept of custodianship is an important one. Not only does it impact quality, accuracy and timeliness, it also extends to issues of data privacy. Who has the need and the right to access human re- source data? In some organiza- tions, the IT department takes that responsibility, but IT stands for information technology — they focus on the technology, not managing the data. •Without a clear custodian of a data element, who defi nes the parameters of the data? Which of the multiple system options rep- resent the primary data source? What systems can update the data? With what frequency? With what edits or review? •Back to data privacy for a mo- ment — there are no clear guide- lines regarding data retention and destruction. And beyond very high-level security issues, no one is looking at how data can be used eff ectively while respect- ing individual privacy. e sad state of aff airs outlined above is almost always true, even when an organization has recently implemented a single HR-wide in- formation system. Issues of data source and integration were likely considered during implementation but it is equally likely the work was less than complete (pressure on timely delivery and budget) and almost certainly not maintained. Payroll already knows the score Of course, this condition of hu- man resource data is no secret to payroll. at is why so many payroll managers want their own data system separate from any HR database — and why one or- ganization's payroll and HR sys- tems duplicate most data (though the duplication is not exactly the same). Think about the most basic data element — a worker's name. In most organizations, this data is collected over and over again, some with a middle initial, some with a middle name, some concat- enating the hyphenated surname for lack of room, and so on. If we can't even get one clear piece of data here, how can we ever consider big data? We in human resources (and also lawyers, arbitrators and leg- islators) tend to think and speak of the employee fi le. We all know that in most organizations there is no such thing — instead, there are paper and electronic fi les resi- dent in every HR functional and operational area. Co-ordinating 2 databases But what about an organiza- tion that has a large operational department, with its own HR systems totally separate from the offi cial HR department's HR system? ere is absolutely no co-or- dination of the two databases. Much of the data exists in both places but is not exactly the same, and gaps certainly exist. OK, now hand over "the fi le." Integrated data management and analysis is an extremely wor- thy goal. It could be operationally critical for an organization's suc- cess or failure. But if one of the core founda- tional systems — dealing with human resources — isn't man- aged properly, one of the chair legs could be signifi cantly shorter than the others. While I am particularly con- cerned about human resources data, I want to emphasize that much of the foregoing is equally true for all functional areas. e management of data — from defi nition to collection, from re- tention to usage guidelines and destruction — is very often a pro- cess that falls through the cracks. Ian Turnbull is managing director of Toronto-based Laird & Greer Man- agement Group, specializing in HR, payroll and time system selection and management. He is the author of the HR Manager's Guide to Managing In- formation Systems, published in 2014 by Carswell. He can be reached at (416) 618-0052, iturnbull@lairdand- greer.com or on Skype: ianturn. Ian Turnbull Guest Commentary Integrated data management and analysis is an extremely worthy goal. It could be operationally critical for an organization's success or failure. A policy setting forth what's expected of employees at company-sponsored events or a code of conduct may help to deter improper behaviour.

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