Canadian HR Reporter

CanaDian hr reporter november 17, 2014 12 News anyone's best interest," she said, adding that employers could open themselves up to discrimination claims around ethnic or national origin, disability and privacy, among other areas. If any concerns do come up about potential Ebola exposure, employers should start by sim- ply asking the question, "Are you aware that you had any exposure to anybody that's suff ering from Ebola?" said Kuzz. "And if the answer is no, I think the most an employer could do is… give them the information that describes what the symptoms are, and (advise them) to track themselves for any symptoms… and report if they do have any." Employer options If there is reasonable potential for exposure, employers have a few diff erent options, said Whitten — keeping in mind that unrea- sonably sending someone home without pay could trigger a con- structive dismissal allegation. "First of all, employers have the right to dictate when employees take vacation — that's something a lot of people don't realize. So an employer, rather than just paying people because they may be ex- posed to (Ebola), they can insist that they utilize vacation time," he said. "Another strategy, if you're concerned about that employ- ee infecting others, is to have them work from home, if that's possible." In Ontario, there are several unpaid leaves — including new ones — that could also be used in instances of serious illness, such as family medical leave, personal emergency leave, family caregiver leave and "declared emergency" leave if the government declares a state of emergency, said Kuzz. " ese are all unpaid leaves, but we have to make sure that we're aware that employees are entitled to them (and employers are) en- titled to ask for reasonable proof." Short-term disability may also be an option in some circum- stances, said Whitten. Employers need to look at all of these issues through the lens of providing a safe work environ- ment, he said. "An employee does have the right to refuse to work in an unsafe work environment, if they have a reasonable basis for doing so. And if they do, then that triggers an ob- ligation on the employer's part to investigate and to ensure whether or not there is a hazard that needs to be dealt with." Assuming Ebola exposure is covered under work refusal rights and the employee is not in an ex- empted job category, employers need to go through the entire investigation process, said Kuzz. And if an employer fi nds there is no rational basis for the refusal but the person continues to refuse the work, the Ministry of Labour has to conduct its own investigation. "If they conclude that there's no basis for the refusal… the employ- ee could be subject to discipline, up to and including (dismissal)," she said. e key to maintaining pro- ductivity, minimizing fears and avoiding liability is education and communication, said Douglas Angus, a professor and manage- ment expert at the Telfer School of Management at the University of Ottawa. "Communication — it's abso- lutely critical. And the more (or- ganizations) communicate, the more assurance that people will have," he said. "It is important to have contin- gency plans, and then that also becomes part of the communi- cations side of it. You should be letting people know that there are contingencies that could be put in place should things get serious enough." Simply having that knowledge and education can help minimize fears, said Kuzz. "One of the things we all need to be careful about around this is not upping the panic and increas- ing the paranoia. I think employ- ers do themselves a favour and, frankly, their employees by edu- cating them. Public Health On- tario has put out some really good literature around how the disease is transmitted and how it's not, so I think employers need to start by informing themselves, and then they have to take each situation on its own facts." Don't add to panic, paranoia ebOLa < pg. 1 Infl uenza: The outbreak you should worry about In Canada, there's a much greater chance of contracting seasonal in uenza than contracting Ebola, according to Kevin Katz, medical director of infection prevention and control at north York general Hospital in toronto. "Infl uenza is a very common illness. the estimate is between 10 and 15 per cent of Canadians are infected every year. and because the strains of infl uenza shift every year, the requirement for vaccination is, unfortunately, every year." It's important for employers to encourage employees to get vaccinated, he said. "the benefi t of getting the shot is it actually is the best public health measure we have to reduce the incidents of infl uenza. and there's good data that it actually reduces in uenza on the order of about 60 per cent. So 60 per cent of people who get the shot don't become ill at all. "there's also data that it reduces absenteeism at work and has economic benefi ts related to that." Fears about Ebola are understandable, given the dramatic media coverage and high fatality rate, said Katz, but in north america the risk is extremely low. "the average person is fearful about it but there's not really anything they can do that's productive around that fear. Whereas infl uenza, on the other hand… we have several thousand deaths annually and we actually do have an intervention that can reduce that risk. and the irrationality there is that people don't actually take the public health measures that everyone recommends to protect themselves. "It all comes down to risk perception, and if people don't feel that it's a direct risk to them, then they're not worried about it." member of a union and, therefore, subject to a collective agreement. "(His) claims for defamation, breach of confi dence and breach of good faith are, in their essential character, disputes that arise out of the termination of his employ- ment. Dressing them up as some- thing different doesn't change that," said Toronto lawyer Allan Rouben in an online post. "My guess is that the CBC will bring a court application to stay or dismiss the action. Based on legal precedent, they will almost certainly be successful." But there's no straightforward answer, according to Jonathan Tweedale, a lawyer at McLean & Armstrong in Vancouver. It's about taking a look at the factual context of the dispute and whether the essential character of the dis- pute concerns subject matter cov- ered by the collective agreement. " at's, of course, inherently contestable and arguable." But if Ghomeshi fi led a griev- ance against the CBC for rein- statement and back pay, he might have trouble, according to How- ard Levitt of Levitt & Grosman in Toronto. "A union can assess all factors in determining whether it will rep- resent a member, including the interests of the other members, ie. accusers, the prospects of suc- cess, the cost of the case, the view of the union toward the miscon- duct and the impact on the union in further negotiations. e pros- pect of a successful duty of fair representation case is remote as long as the union put their mind to the matter and acted in good faith accordingly." And reinstatement is unlikely since the arbitrator would state an employer has the right to ter- minate someone who is toxic to its brand, he said. Cause termination e collective agreement concern- ing Ghomeshi states there shall be no dismissal "except for just and suffi cient cause." So, what grounds might CBC have to turf him? Cause termination essentially is when a worker does something "outrageous" and one would have to consider the conduct and whether the termination for cause is proportional to it, according to Ron Minken of Minken Employ- ment Lawyers in Unionville, Ont. "If an employee had been with an employer for decades, did something very serious, it may be that termination for cause is not proportionate to the behaviour or the conduct. But one could be with an employer for a short pe- riod of time and do something so dastardly… demonstrating a com- plete, fundamental breakdown of the relationship. With cause, you'd need to demonstrate that the re- lationship has been broken down, that the trust is gone completely." A person can also be disci- plined for what she does away from work, such as insulting her manager online, as long as there's a relationship to the employment, said Stuart Rudner, a partner at Rudner MacDonald in Toronto. "Or it's like this type of situ- ation, where it's indirect — he didn't do anything or say anything about CBC but — and this is all hypothetical — if it was found he was sexually assaulting employees or sexually assaulting anyone, well he is very much a face of the CBC so anything that impacts his repu- tation will impact their reputation as well. And, in that case, you can be disciplined or dismissed." Recent cases show the courts focus on the accused's response when confronted with allegations of misconduct, said Rudner. "If an employee under investiga- tion was to go on social media and do what (Ghomeshi) did — breach- ing confi dentiality, wholeheartedly denying any wrongdoing, attack- ing his accusers and embarrassing his employer — that would go a long way toward satisfying a court that the employment relationship could not be resuscitated and dis- missal was appropriate." e more public a fi gure some- one is as a result of employment, the more the employer can regu- late conduct inside and outside the workplace, said Minken. ere could also have been a code of conduct or morality clause, said Minken. After the fi ring, the CBC sent a memo to staff saying it had seen "graphic evidence that Jian had caused physical injury to a woman," according to Maclean's, and it "determined that Jian's con- duct was a fundamental breach of CBC's standard of acceptable con- duct for any employee." Any criminal complaints or charges could impact the case. e Supreme Court of Canada, for example, has established that a person cannot consent to assault if an assault happened, said Minken. However, the information about Ghomeshi's sexual activities and claims of harassment were not made public before his termi- nation, said Tweedale. "I suppose that the CBC is go- ing to take the position that they thought there was a real risk their reputation would be harmed and that that risk was great enough and that reputational harm was legitimate, that it justifi ed their actions." Breaches of confi dence, good faith, defamation As for the lawsuit, it raises the is- sues of breach of confi dence and bad faith related to Ghomeshi's sharing the information about his sexual activities with the CBC. "There may have been some sort of agreement as to how they were going to work together, ei- ther expressed or implied," said Rudner. If the CBC never disclosed Ghomeshi's information publicly, that doesn't mean the broadcast- er couldn't be liable for breach of confi dence, said Tweedale, if confidential information, com- municated in confidence, was misused by the party to whom it was communicated. "In this case, (his) allegation is it was misused by the CBC by us- ing this information as grounds to terminate his employment. And that could constitute a breach of confi dence." However, it's also possible Ghomeshi had an obligation to disclose to his employer certain activities he had engaged in that could harm his employer's reputa- tion and "that could undercut the breach of confi dence," he said. As for defamation, it doesn't ap- pear the CBC had published any information about Ghomeshi at that point, so the damage is ques- tionable, said Minken. However, CBC's additional quote to the Globe and Mail could be taken in a negative light. "You could see the apparent innuendo is that Ghomeshi com- mitted some form of unacceptable conduct," said Tweedale. But Ghomeshi might not be able to proceed with the defama- tion claim "if the essential char- acter of the dispute concerns the subject matter covered by the col- lective agreement," he said. "And there have been numerous cases in which defamation proceedings have been thrown out of court for exactly that reason." Editor's note: Because this is a fast-moving story, the facts may have changed after we went to press. Be sure to check www. hrreporter.com for updates. Is termination proportional to misconduct? GHOMesHi < pg. 1

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