Canadian HR Reporter

CANADIAN HR REPORTER May 4, 2015 INSIGHT 23 A look at dismissal based on video surveillance What procedure should you follow with 'indisputable' evidence of misconduct? Question: If an employer has indisputable video evidence of serious misconduct by an employee (such as an assault of a co- worker or customer), can it terminate the employee immediately, without further investigation or an interview? Answer: When an employer is presented with what appears to be clear evidence of serious miscon- duct by an employee, it is natural to be tempted to move straight to dismissal without going through a seemingly pointless investigation or interview. However, this temp- tation ought to be resisted. As Jus- tice Robert Megarry put it in the 1970 English case of John v. Rees: " e path of the law is strewn with examples of open-and-shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable con- duct which was fully explained; of fi xed and unalterable determina- tions that, by discussion, suff ered a change. Nor are those with any knowledge of human nature who pause to think for a moment like- ly to underestimate the feelings of resentment of those who fi nd that a decision against them has been made without their being aff orded any opportunity to infl u- ence events." Most of the time, simply meet- ing 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 confi rm the employer's under- standing 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 investiga- tion or an interview sheds new light on what has happened or puts a diff erent complexion on the matter. For example, video evidence may have failed to cap- ture the fact the employee was acting in self-defence based on events that occurred off -camera or the employee was subjected to verbal provocation that the video footage fails to convey. An awareness of this context might cause the employer to re- think its initial view as to the ap- propriate sanction to impose for the misconduct or, indeed, wheth- er there was any misconduct by the employee at all. It is better that this occur before termination, in- stead of being revealed in a subse- quent trial or hearing that results in liability for the employer. Conducting an investigation or interview may also expose ad- ditional facts that may warrant action by the employer. For ex- ample, the employer may deter- mine other employees were also involved in the misconduct. Or, in the example of the assault on a co-worker, the investigation may reveal a weakness in the em- ployer's workplace health and safety procedures that needs to be remedied to minimize the risk of liability under occupational health and safety legislation. Before an employer acts on vid- eo surveillance evidence, it should always consider whether the evi- dence is likely to be admissible in a subsequent legal proceeding. Courts and arbitrators have grap- pled for some time with the chal- lenges associated with admitting video surveillance evidence, given the eff ect such evidence may have on an employee's privacy rights. On some occasions, this has led to video surveillance evidence being refused admission into evidence, despite its high probative value. A recent example in the labour arbitration context is Crown Packaging Ltd. The employee was dismissed for fraudulently claiming sick leave for three days, and the employer's case was based on clandestine video surveillance evidence ob- tained by a private investigator. e arbitrator — after contrasting the more permissive approach to admissibility of video surveil- lance evidence that has domi- nated in Ontario with the stricter approach that has tended to pre- vail in British Columbia — ruled the evidence was inadmissible. e arbitrator found the em- ployer had not established reason- able grounds for the collection of the video surveillance evidence and the employee's privacy rights had, accordingly, been violated. While the basic touchstone of admissibility of video surveil- lance evidence in grievance arbi- trations — being the reasonable- ness of the employer's actions in obtaining the evidence — is es- sentially the same across Canada, this case illustrates the impor- tance of obtaining advice on how the relevant interests are likely to be balanced in the particular ju- risdiction in which the employer is operating. For more information see: · John v. Rees, 2 All E.R. 274, [1970] Ch. 345 (Eng. Ch. Div.). · Crown Packaging Ltd. (2014), 243 L.A.C. (4th) 423 (Dorsey). Colin G.M. Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com. Colin Gibson TOUgHeST HR QUeSTiON Growing talent from within It's about refusing to rely on other organizations for training and development Ever since the great recession, employ- ers have become rather spoiled when it comes to acquiring the talent they need. Organizations just aren't training and developing employees the way they used to and, in many cases, they simply look to the external market for talent. With so many people looking for work for so long, employers could aff ord to be choosy and essentially rely on other companies to train and develop talent for them. But some organizations are starting to realize that can't continue forever — eventually, they are going to have to start providing adequate training or they aren't going to have the skills they need. Classroom, on-the-job learning Formal education only goes so far, but not everything can be learned informally on the job either. Ac- cording to the 70:20:10 model, around 70 per cent of adult learn- ing should occur on the job, with 20 per cent consisting of coaching and mentoring and about 10 per cent coming from formal class- room learning and reading. While the majority of knowl- edge and expertise related to a role is typically acquired through experiential learning, in many cases there is still a role for more formal training. at is particu- larly important where specific licences, certifications, profes- sional designations or courses are required to perform the job. But even where an individual's training and development needs can largely be met on the job, it's still possible that acquiring the necessary knowledge, skills and abilities could take many years. No wonder many commenta- tors are talking about skills short- ages if companies aren't willing to take a chance on individuals with potential and provide proper training to ensure success on the job. Demographic challenges are making matters even worse, with boomers retiring in larger num- bers and all that talent and or- ganizational knowledge literally walking out the door. Another problem is if there are relatively few people possessing the qualifi cations and experience required for the job in question, the law of supply and demand will typically increase the level of com- pensation for the role. In some cases, employers simply cannot aff ord to pay the rates demanded by such individuals. Growing talent internally One solution to these challenges is for employers to try to grow talent internally through the provision of appropriate work ex- perience and learning and devel- opment initiatives. Such training can be delivered entirely in-house or in partner- ship with a college, university, professional organization, union, charitable organization or gov- ernment agency. For example, if an organization has a need for programmers and cannot fi nd any in the open mar- ket, it might try hiring inexperi- enced people with an aptitude and interest in working in the fi eld. e company could then pay for their training through a com- munity college at night school while providing meaningful, rel- evant experience. Alternatively, it could arrange with the college to create a cus- tomized program for employees on a day release basis. Other tips and strategies for growing talent internally include: •Take on apprentices through government apprenticeship programs. • Consider establishing internal training and intake programs where no formal apprenticeship programs exist. • Provide adequate training, de- velopment, coaching and men- toring opportunities. • Off er robust tuition reimburse- ment programs. • Develop paid internship and campus recruitment pro- grams for students and recent graduates. • Select employees for aptitude and cultural fi t rather than in- sisting on hiring "purple squirrel" candidates. • Consider non-traditional can- didates such as internationally educated professionals, people with disabilities, the long-term unemployed and people from other industries. • Develop internal recruitment policies and encourage pro- motion from within wherever possible. • Establish alumni networks and encourage former employees to apply for vacancies. • Actively recruit candidates from other areas and provide reloca- tion assistance. • Consider partnering with other organizations in the area to provide development opportuni- ties through secondments. • Develop leadership development programs for new and aspiring leaders. • Conduct succession planning and create individual devel- opment plans for succession candidates and high-potential employees. Brian Kreissl is the product develop- ment manager for Carswell's human resources, OH&S, payroll and records retention products and solutions. He can be reached at brian.kreissl@ thomsonreuters.com or visit www. carswell.com for more information. Brian Kreissl GUeST COMMeNTaRY "People who identify as part of the LGBT community are valuable members of our organizations. It's frightening that a publication aimed at HR professionals — the people generally accountable for ensuring our workplaces are accommodating and safe — would experience backlash when an LGBT story is published. Thank you for reminding your readers that this is, in fact, an HR issue. LGBT workers are entitled to the same rights, safety and accommodations as other workers. This is enshrined in every human rights act across the country but is far from the lived reality of many of our LGBT workers, who still experience direct and systemic discrimination here in Canada." — Laura Negraeff, commenting on Todd Humber's blog "Employers responding to anti-gay rhetoric in a surprising, and effective, way" Join the conversation. Comment on any blog on www.hrreporter.com. READER COMMENTS Conducting an investigation or interview may expose additional facts that warrant action by the employer.

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