Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | September 2, 2015 with Brian Johnston Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Enforcing zero tolerance policies Question: Are zero tolerance policies enforceable? If an employer makes it clear to employees that a certain type of misconduct will result in immediate dismissal, can that misconduct constitute just cause? Waiting to accept employee's resignation Question: Does the nature of an employee's job (such as a key role in a team that the employer can't afford to be vacant) affect how long an employer has to wait to accept an employee's resignation that came in anger? Answer: ere is no set amount of time that an employer must wait to accept a resigna- tion, but there are compelling reasons why an employer should wait at least some time before accepting a resignation. Ensuring that the resignation was tendered voluntarily is a much more important factor in deciding when to accept a resignation than the nature of the employee's job. Resignations need no acceptance in order to permit the employee to leave the employment relationship. e acceptance of an employee's resignation by an employer only makes it irrevocable by the employee. e law recognizes that sometimes, if angry, frustrated or faced with hard-handed tactics, an employee may make a rash decision to quit; which is why resignations need to be made voluntarily to be effective. In the unionized environment, resigna- tion includes a subjective intention to leave the employment relationship as well as ob- jective conduct that would allow that inten- tion to be realized. If resignation is given vol- untarily and after careful consideration by the employee, it does not require acceptance by the employer to be effective unless there is specific contractual language to that effect (see London (City) v. London Professional Fire Fighters Assn. It is not always to the benefit of the em- ployer to immediately accept a resignation because resignations given in anger, frustra- tion, or on the spur of the moment are some- times vitiated because they are not consid- ered to be voluntary. One reason employers should take a mo- ment when accepting a resignation comes from Alberta v. A.U.P.E. It states that one consideration in determining the voluntari- ness of a resignation is if the employer should have taken more care prior to accepting the resignation. is principle was applied in Robertson v. Deputy Head (Department of National Defence), where the employer was found to have exercised appropriate care be- fore accepting a resignation. e employer initially encouraged the employee to take time to think about tendering resignation, to exercise different options and was patient with them throughout their decision to re- sign. is prevented a finding of construc- tive dismissal. In the non-unionized environment, courts have similarly held that unless there are bylaws or contractual provisions stating otherwise, acceptance is not a requisite for resignation to be effective, see Howard v. Saint John (City). An employee may choose to end the employment relationship as she desires, but the terms of a specific employ- ment contract would have a large bearing on how advisable such a move might be. Gener- ally, contracts have conditions for termina- tion, which could result in penalties if not adhered to by either party. If the conditions entailed penalties for early cancellation, or a specified notice period that was not fol- lowed, it could mean liability for the resign- ing party. For more information see: • Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co. 1965 CarswellOnt 618 (Ont. Arb.). • Butler-Lynch v. Dr. Roz's Healing Place, 2007 CarswellOnt 8582 (Ont. S.C.J.). • London (City) v. London Professional Fire Fighters Assn., 2009 CarswellOnt 8325 (Ont. Arb.). • Alberta v. A.U.P.E., 2012 CarswellAlta 1037 (Alta. Arb.). • Robertson v. Deputy Head (Department of National Defence), 2014 CarswellNat 2395 (Can. Public Service Lab. Rel. Bd.). • Howard v. Saint John (City), 1951 Carswell- NB 22 (N.B. Ch.). Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmck- elvey.com. Answer: Yes, zero tolerance policies are en- forceable as long as the adjudicative body (whether it is a court or an arbitrator) is sat- isfied that the breach of the policy occurred and the employee's conduct constituted just cause for dismissal. In other words, just because the employer's policy says it is so, it does not necessarily mean it is. e well- known KVP decision, Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., con- templates that an employer can create of- fences for which discipline up to discharge are appropriate but ultimately the arbitrator has to be satisfied that the policy was "rea- sonable." In the non-unionized environment, there are cases where an employer has, through its own policies, said that certain culpable employee behaviour constitutes just cause for dismissal but a court has not agreed. Take, for example, Butler-Lynch v. Dr. Roz's Healing Place, in which an employee was dismissed under a zero tolerance workplace anti-oppression policy for comments made to colleagues working at a women's shelter. Although the court acknowledged the need to implement policies that discourage these behaviours, and specifically noted that ter- mination on those grounds was acceptable in some cases, it stopped short of acknowl- edging just-cause dismissal in this case. Al- though the policy was good-intentioned, the behavior was not meriting of such severe punishment; the judge was of the opinion that dismissal was not warranted given the insubstantiality of the plaintiff 's actions and because the plaintiff had no history of simi- lar behaviour. Nonetheless, if an employer considers that some type of conduct merits discharge and such conduct would not be tolerated, the fact that the employer creates a policy to that effect is of tremendous assistance to the employer if that incident occurs. e policy puts the employee on notice of what is ex- pected and signals the consequence for the breach. at has strong equitable value. Fur- ther, in the non-unionized environment, it could be said that the policy is incorporated into the employee's employment contract and therefore even if the court might not think it is worthy of zero-tolerance, the par- ties have agreed that it is and therefore the parties have effectively agreed that a breach constitutes just cause. A zero tolerance policy puts the employee on notice of what is expected and signals the consequence of the breach.

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