Canadian Employment Law Today

with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | April 15, 2015 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Answer: When an employer is presented with what appears to be clear evidence of serious misconduct by an employee, it is natural to be tempted to move straight to dismissal without going through a seem- ingly pointless investigation or interview. However, this temptation ought to be re- sisted. As Justice Megarry put it in the 1970 English case of John v. Rees: "As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unan- swerable charges which, in the event, were completely answered; of inexplicable con- duct which was fully explained; of fixed and unalterable determinations that, by discus- sion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underesti- mate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence events." Most of the time, simply meeting with the employee (and, in the union context, the employee's union representative), putting the alleged misconduct to her, and providing an opportunity to respond, will be all that is required. Typically, this process will serve to confirm the employer's understanding of what has occurred and fortify the employer in its view that it is appropriate to proceed to termination of employment. In addition, an employer may discover that further investigation or interview sheds new light on what has happened or puts a different complexion on the matter. For ex- ample, video evidence may have failed to capture the fact that the employee was act- ing in self-defence based on events that oc- curred off-camera, or that the employee was subjected to verbal provocation which the video footage fails to convey. An awareness of this context might cause the employer to rethink its initial view as to the appropriate sanction to impose for the misconduct or, indeed, whether there was any misconduct by the employee at all. It is better that this occur before termination, instead of being revealed in a subsequent trial or hearing that results in liability for the employer that could have been avoided. Conducting an investigation or inter- view may also expose additional facts that may warrant action by the employer. For example, the employer may determine that other employees were also involved in the misconduct. Or, in the example of the as- sault on a co-worker, the investigation may reveal a weakness in the employer's work- place health and safety procedures which needs to be remedied to minimize the risk of liability under occupational health and safety legislation. Before an employer acts on video surveil- lance evidence, it should always consider whether the evidence is likely to be admissi- ble in a subsequent legal proceeding. Courts and arbitrators have grappled for some time with the challenges associated with admit- ting video surveillance evidence, given the effect such evidence may have on an em- ployee's privacy rights. On some occasions, this has led to video surveillance evidence being refused admission into evidence de- spite its high probative value. A recent example in the labour arbitra- tion context is Crown Packaging Ltd. e employee was dismissed for fraudulently claiming sick leave for three days, and the employer's case was based on clandestine video surveillance evidence obtained by a private investigator. e arbitrator, after contrasting the more permissive approach to admissibility of video surveillance evi- dence that has dominated in Ontario with the stricter approach that has tended to prevail in British Columbia, ruled that the evidence was inadmissible. e arbitrator found that the employer had not established reasonable grounds for the collection of the video surveillance evidence, and that the employee's privacy rights had accordingly been violated. While the basic touchstone of admissibility of video surveillance evidence in grievance arbitrations — being the reasonableness of the employer's actions in obtaining the evidence — is essentially the same across Canada, this case illustrates the importance of obtaining advice on how the relevant in- terests are likely to be balanced in the par- ticular jurisdiction in which the employer is operating. Dismissal of dependent contractors Question: What are the main differences between "dependent contractors" and employees with regard to notice of dismissal and just cause for dismissal? Answer: Traditionally (or as one judge de- scribed it, "in simpler times"), a distinction was drawn in the law between two types of workers: employees and independent con- tractors. e former were entitled to protec- tions at common law and under statute (gen- erally including an entitlement to reasonable notice of dismissal without cause), and the latter were not. More recently, courts — and in some jurisdictions, the legislatures — have recognized there exists a category of worker who has many characteristics of an independent contractor, but is sufficiently dependent economically on a particular em- ployer or organization to justify providing the worker with legal protections an inde- pendent contractor would not enjoy. Work- ers falling into this "intermediate" category are commonly referred to as dependent con- tractors. In McKee v. Reid's Heritage Homes Ltd., the Ontario Court of Appeal identified dependent contractor relationships as"non- employment work relationships that exhibit a certain minimum economic dependency, which may be demonstrated by complete or near-complete exclusivity." e circumstances where an employer can terminate a contract — whether a con- tract of employment or one giving rise to a dependent contractor relationship — will depend on the express or implied terms of the contract. Generally speaking, an em- ployment contract can be terminated for just cause without any notice or severance compensation. Similarly, an employer will usually be entitled to terminate the ser- vices of a dependent contractor summarily, if there is just cause for doing so. e same types of misconduct that would provide just cause for dismissal of an employee will nor- mally be sufficient to terminate a dependent contractor relationship. For example, in Khan v. All-Can Express Ltd., the B.C. Su- preme Court held that the plaintiff was a de- pendent contractor, he owed the employer the same duty of fidelity and good faith as an employee, and a breach of that duty would have provided just cause for the termination of his contract. Where an employee is dismissed without cause, her entitlement to no- tice or severance compensation will be determined by the terms of the applicable contract of employment. If the contract does not contain an enforceable termina- Dismissal based on video surveillance Question: If an employer has indisputable video evidence of serious misconduct by an employee (such as assault of a co-worker or customer), can it terminate the employee immediately without further investigation or interview? NOTICE on page 6 »

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