Canadian Employment Law Today

Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | September 30, 2015 Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Is salary and bonus information confidential? Question: Can an employee's compensation information (salary and bonuses) be considered confidential company information that employees can be prohibited from disclosing? Failure to file internal harassment complaint: Is the employer off the hook? Question: If an employee who has expressed concerns about sexual harassment declines to file a formal complaint under our harassment policy after we have made it clear that she may do so without fear of reprisal, will we be liable if the employee later decides to bring a human rights complaint? Answer: Under human rights law, an em- ployer has a duty to provide a work environ- ment that is free from discrimination and harassment on the grounds protected by the applicable legislation. While it is good prac- tice — and in some jurisdictions mandatory — for an employer to have a policy that pro- vides a mechanism for the filing, investigation and disposition of harassment complaints, an employer may be required to act even if a complaint has not been filed. Human rights tribunals have held that an employer has an obligation to investigate a complaint of alleged discrimination or ha- rassment, and that a failure to do so may result in liability even if the complaint is ultimately dismissed by the tribunal. If the complaint is upheld, the employer may be exposed to ad- ditional monetary damages if it is found to have failed to investigate and deal properly with the matter. How should an employer deal with an em- ployee who claims to have been exposed to harassment or discrimination, but says she does not want to proceed with a formal com- plaint? In this type of situation, the employer is put in a difficult position. On one hand, it is challenging for the employer to proceed with an investigation where the complainant re- fuses to come forward or insists on remaining anonymous. As a matter of procedural fair- ness, it is difficult for the employer to put the allegations to the respondent and give him or her a reasonable opportunity to respond, if the complainant refuses to come forward or participate in the process. On the other hand, the employer cannot simply turn a blind eye to the fact that harassment or discrimination may be occurring in the workplace. To assist the employer in persuading a complainant to come forward in this kind of situation, the workplace policy on discrimi- nation and harassment should contain clear language indicating that retaliation against an employee who has filed a complaint will not be tolerated, and will lead to discipline up to and including termination of employment. An employer may also search for other ways to initiate the complaint and investi- gation process. For example, a co-worker who has witnessed the alleged harassment or discrimination may be willing to make a complaint. Alternatively, the employer may be able to monitor the work environment carefully, and in that way obtain independent evidence of any discrimination or harassment that is occurring. If alternative options are not viable and the complainant still does not wish to participate, the employer may need to proceed with an investigation in the complainant's absence. In this type of situation, the employer will need to be careful to ensure that the respondent's rights are protected while witnesses are be- ing interviewed, so the investigation does not turn into a "witch hunt." Additionally, it is ad- visable for an employer to recirculate its ha- rassment policy and provide training sessions to employees to raise awareness and remind people regarding the parameters of accept- able conduct at work. See Fanucchi v. Price's Alarm Systems Ltd., 1999 CarswellBC 737 (B.C. C.A.). Colin G.M. Gibson is a partner with Har- ris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@ harrisco.com. Answer: At common law, an employee has an implied duty of good faith, which prevents the employee from disclosing or misusing the employer's confidential information. Also, employment contracts often contain express provisions that are designed to protect the confidentiality of the employer's trade secrets and other types of confidential information to which the employee could be exposed. But what information is confidential? Do an employee's confidentiality obligations ex- tend to information about salaries or bonus- es? What about other types of remuneration, such as benefits, car allowances, commission plans, and retirement arrangements? e answer to these questions will depend on the nature of the employer's operation, and the express or implied terms of the applicable employment agreement. In unionized workplaces, the terms and conditions of employment covering the bar- gaining unit employees will be set out in the collective agreement, which in most juris- dictions is a public document. Similarly, the remuneration that is provided to managerial and other employees who work for the gov- ernment or for public sector employers, will usually be publicly available and/or accessible under freedom of information legislation. In some industries, however, information about salaries, bonuses and other aspects of compensation may be highly confidential. It may be very important for the maintenance of an employer's competitive position, for ex- ample, for the employer to ensure that wage and remuneration information does not fall into the hands of its competitors. Also, an em- ployer may not want its employees discussing their salaries and bonuses with coworkers. If an employer wants to protect the confi- dentiality of its compensation information, it should not rely on its employees' implied common law duties, as those obligations may fall short of granting the protection the em- ployer requires. In Fanucchi v. Price's Alarm Systems Ltd., for example, the employee was dismissed less than a week after commencing employment for divulging her salary to an- other employee. At trial, the employer argued that the employee had breached her duty of confidentiality. e trial judge found that the employee had not understood she was re- quired to treat her salary as confidential, and ruled that the employer had not established cause for dismissal. e best way to ensure confidential infor- mation is properly protected is through the use of a carefully drafted employment agree- ment. e agreement should contain a clear and comprehensive definition of confidential information, set out the covenants the em- ployee is required to comply with to preserve the confidentiality of that information, and describe the consequences of non-compli- ance. If the penalty for disclosing confiden- tial information is dismissal, that should be clearly spelled out. It may also be advisable to supplement the employment agreement with policies, communications and other notifica- tions to emphasize the importance of main- taining the confidentiality of specific types of information. An employer may be required to act even if a complaint has not been filed. with Colin G.M. Gibson HARRIS AND COMPANY, VANCOUVER

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