Canadian Employment Law Today

with Meghan McCreary Ask an Expert MACPHERSON LESLIE AND TYERMAN LLP, REGINA Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | November 25 , 2015 Answer: Discipline is warranted if the fi ght can be shown to be connected to the workplace and it harms the employer's interests. e general rule a is that an employer has no interest in the activities of employees outside of working hours and away from the employer's business. However, an exception to this general rule exists when an employ- ee's off -duty conduct can be shown to have a negative impact on the employer's opera- tions. In order to discipline an employee for off - duty conduct, an employer must prove that: • e employee engaged in misconduct • ere is a "real and substantial connection" (a "nexus") between the off -duty conduct and the workplace • e employer's interests were harmed by the employee's off -duty actions. To prove misconduct, an employer will, in most cases, have to conduct an investigation. Such an investigation should, at minimum, examine both the facts and circumstances surrounding the conduct and provide the employee with an opportunity to explain his behavior. Failure to conduct an investigation may prejudice an employer's position at a later date when attempting to justify any dis- cipline imposed. If misconduct is proven, the employer must then establish a "real and substantial connection" between the employee's con- duct and the employer's interests. is will depend on not only the nature of the em- ployee's duties and the employer's expecta- tions for the employee's conduct, but also on the history and quality of the employee's conduct, the nature and seriousness of the employee's conduct, and the impact of the employee's conduct on the employer's busi- ness and reputation. If such connections cannot be made, discipline for off -duty con- duct will not be justifi ed. If misconduct is proven and a connection is established, the employer must demon- strate that the employee's behaviour has one or more of the following consequences: • It seriously harms the employer's reputa- tion in the marketplace or with the public • It renders the employee unable to perform his duties satisfactorily • It leads to the refusal, reluctance or inability of co-workers and colleagues to work with the employee in question • It results in the employee being charged or convicted of a serious breach of the Crimi- nal Code, thus rendering his conduct inju- rious to the general reputation of the com- pany and its employees • It creates diffi culty for the employer in properly carrying out its functions or effi - ciently managing its workforce. If one or more of these criteria apply, and in the case of a fi ght, if the consequence of the fi ght is that employees are not able to work together and this interferes with the business, then it may be justifi able to disci- pline the employees involved for their off - duty conduct. Provinces with violence in the workplace policies – Risk assessment We also note that in some provinces, such as British Columbia and Ontario, provincial legislation requires employers to implement violence in the workplace policies. For instance, in British Columbia, sections of the Occupational Health and Safety Regulation address workers' rights to be protected from work-related threats and assaults. ese sections of the regulation require an employer to determine if there is a risk of violence in the workplace and to set up procedures to eliminate or minimize such risk if a risk exists. Because the fi ght between the two em- ployees occurred outside of work and while off -duty, it is unlikely that a workplace vio- lence policy would be applicable to the inci- dent. However, if a risk assessment indicates that there is a risk of violence occurring at work because of the off -duty fi ght, then the violence in the workplace policy may be trig- gered and the employer is obligated to take steps to eliminate or minimize such risk. Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Question: If two employees get into a fight outside of work while off-duty, does the employer have an obligation to investigate or take any action other than instructing the employees to act professionally while at work? Not allowing dismissed employee to collect belongings Question: If a dismissed employee is escorted off the premises without being allowed to return to her workstation to collect any personal belongings — which would be sent later — is the employer at risk of added damages in the manner of dismissal? Answer: If at the time of dismissal the dis- missed employee is treated respectfully and with as much privacy as reasonably possible, it is unlikely that the employer would be at risk for additional damages for not allowing the employee to collect her own personal be- longings before leaving the workplace. e law regarding damages for the manner of dismissal has been subject to signifi cant changes in the past 20 years, and because of such changes, some of the jurisprudence respecting such damages is no longer valid. e seminal Supreme Court of Canada decision that allowed employees to recover damages based on the manner in which they were dismissed is Wallace v. United Grain Growers Ltd. In Wallace, the Supreme Court allowed for an extension of the reasonable notice period based on the manner of dis- missal and for the mental distress caused by the dismissal on the basis of the employer's good faith and fair dealing obligation. e court reasoned that, at minimum, an em- ployer must be "candid, reasonable, honest and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive." Following Wallace, certain high-handed or unfair conduct by the employer could result in an increased notice period award. However, the normal hurt feelings that can accompany the end of an employment relationship were not, and still are not, compensable. In 2008, e Supreme Court modifi ed the ruling from its Wallace decision in Honda Canada Inc. v Keays. e primary modifi ca- tion is that the damages awarded for bad faith conduct upon dismissal is no longer realized in an arbitrary extension of the reasonable notice period. Instead, such an "increase" in a damages award must be rooted in actual foreseeable and suff ered damages. While the court reaffi rmed the criteria set in Wal- lace, the main impact of this decision was to award damages based on "actual damages" and eliminate the possibility of damages be- ing awarded through an arbitrary extension of the notice period. is brings the treat- ment of such damages in line with "all other cases dealing with moral damages." Most importantly, the court provided ex- amples of what conduct at dismissal could result in compensable damages. ese are: attacking the employee's reputation by declarations made at the time of dismissal; misrepresentation regarding the reason for the decision to dismiss; or dismissing an em- ployee in order to deprive her of a pension benefi t or other right. As demonstrated above, in order for added damages to be awarded, there must Employee off-duty fight RESPECT on page 6 »

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