Canadian Employment Law Today

October 15, 2014

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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Canadian HR Reporter, a Thomson Reuters business 2014 with Brian Johnston Ask an Expert Stuart McKelvey Halifax Have a question for our experts? Email 2 | October 15, 2014 Answer: A proper and complete investiga- tion should provide recommendations for implementing discipline including a time- line for implementation of such discipline. While there are no common law rules or jurisprudence denoting what is a reasonable time limit, employers should be aware that failing to discipline following investigation can lead to an argument that the employer has condoned the employee's behaviour. In a unionized setting, collective agree- ments may establish disciplinary action should be taken within a specified time, but where not specified, as noted in Brown and Beatty's Canadian Labour Arbitration, "it is a long-standing principle of arbitration law that employers must sanction individu- als for behaviour in regards as inappropri- ate in a reasonably expeditious fashion." A recent arbitration found that acting within two months of learning of allegations was not an unwarranted delay (O.S.S.T.F. v. ames Valley District School Board). Ar- bitrators consider whether the employee has been prejudiced by the delay — such as deprived of a fair opportunity to respond to allegations — in determining whether it has been reasonably expeditious. In some cases it may be inappropriate to continue the existing working arrangement during an investigation. For example, when the investigation is into alleged harassment, working alongside the individual who has brought forward the complaint may be in- appropriate and there may not be any other position to which to move the individual. Another example could be an individual accused of theft who works largely unsu- pervised. In those instances where it is in- appropriate to continue the existing work- ing arrangement, the right to suspend with or without pay may be found in the written employment contract, company policy or procedure manual or in a practice adopted by the employer. If not, courts are reluctant to imply a term allowing for suspensions into a contract unless it is necessary to pro- vide business efficacy to the contract. ere is a risk that suspending indefi- nitely without pay, absent the right to do so in an employment contract or policy, will provide the employee with a constructive dismissal claim. is was the situation in Carscallen v. FRI Corporation, where the court said there had been no procedural fairness provided to the employee when the indefinite suspension without pay was im- posed. Instead, the court found the suspen- sion was punitive when the employee was simply ordered to leave work as an inten- tion to humiliate her in the hope she would not come back. Employers should also be mindful that most provincial employment standards legislation stipulates an employee cannot be suspended without cause — such as for wilful misconduct — without statu- tory notice unless the suspension is for a defined period of time. For example, the Nova Scotia Labour Standards Code says suspensions should not exceed "six con- secutive days." erefore, on a practical level, if it is not possible to keep the employee under inves- tigation at work or in an alternate position, and there is no contract, policy or practice of suspending an employee without pay, an employer should consider suspending the employee under investigation with pay. Suspension following investigation Question: What is a reasonable time to implement discipline for employee misconduct following the completion of an investigation? Should an employee always be suspended pending investigation or can the employee work during the investigation? Affirmative action plans and discrimination risk Question: Can actively looking to recruit more individuals with certain characteristics (age, race, disability) to influence the diversity of an employer's workforce be considered discrimination itself? Answer: While making any distinction on the basis of certain characteristics may be prima facie discrimination, distinctions made for specific ameliorative purposes are typically deemed non-discriminatory. Sec- tion 15 of the Canadian Charter of Rights and Freedoms states that its protections do not "preclude any law, program or activ- ity that has as its object the amelioration of conditions of disadvantaged individuals or groups." When employers seek to recruit to broad- en workplace diversity, they are likely en- gaging in an ameliorative program such as an "employment equity" or "affirmative ac- tion plan." Such plans have the goal of ame- lioration of systemic discrimination and are therefore deemed non-discriminatory. e recent Federal Court case, Canadian Doctors for Refugee Care v. Canada (Attor- ney General), provides insight regarding the administration of ameliorative programs. e court, drawing from various decisions of the Supreme Court of Canada, makes clear that s.15(2) of the charter — and cor- responding provincial human rights legis- lation — affirm the validity of ameliorative programs, even though it is "unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude oth- ers." However, the court also makes clear the program should be genuine and directed at improving the situation of a group that is need of ameliorative assistance. A case to watch is Rizzardo v. University of British Columbia, where a preliminary application to dismiss a complaint was denied by the British Columbia Human Rights Tribunal. e complaint alleged discrimination on the basis of "sex" where the employee had been hired by UBC to coach its women's soccer team, but was dismissed shortly after and a female hired to replace him. e university denied sex was a factor in the decision, but it could have been "an appropriate consideration given the under-representation of women in coaching. ...(UBC) says hiring a female coach furthered the purposes of the code as it improved the participation of women in coaching positions." e tribunal found UBC didn't advertise a preference for a female candidate and didn't apply for an exemption from discrimina- tion protections under the code for its em- ployment equity program. It determined it would need to examine the circumstances more fully. e UBC case demonstrates that a "na- ked declaration" a program is ameliorative is not determinative. For an ameliorative program to be deemed non-discriminato- ry, there often needs to be a human rights- approved program where the fundamental question has been asked: "does the distinc- tion made by the program serve or advance its ameliorative goal?" For more information see: • O.S.S.T.F. v. ames Valley District School Board, 2012 CarswellOnt 8676 (Ont. Arb.). • Carscallen v. FRI Corporation, 2006 Car- swellOnt 5517 (Ont. C.A.). • Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 Car- swellNat 2430 (F.C.). • Rizzardo v. University of British Colum- bia, 2014 CarswellBC 292 (B.C. Human Rights Trib.). Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmck-

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