Canadian Employment Law Today

with Colin G. M. Gibson Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | December 9, 2015 Answer: Employers generally have the right to determine how their businesses should be managed. is right includes the ability to implement workplace rules and policies. To be enforceable, however, a company policy must be reasonable, clear, communicated to the affected employees, and not inconsistent with any applicable collective agreement or contractual requirements. In addition, a company policy must be enforced consistently. If breaches of a policy are ignored or condoned by persons within the company who are responsible for enforc- ing the policy, or if enforcement is otherwise sporadic, the employer will not be able to rely on a breach of the policy as justification for discipline or discharge. Adjudicators have consistently ruled that an employer who has knowledge of an employee's misconduct is expected to take appropriate action within a reasonable timeframe. Otherwise, if the em- ployer overlooks the misconduct or delays unreasonably in doing something about it, it is likely to be found to have condoned the offence. Where it is alleged that an employer has condoned an employee's breach of policy, the first question will often be whether the employer was aware — or ought to have been aware — of the breach. An employer cannot be found to have condoned an em- ployee's misconduct that it could not rea- sonably have been aware of. ere may also be an issue about whether the manager or company representative who is alleged to have condoned the breach had the actual or ostensible authority to do so. Here, a decision maker will look for evidence that the person in question had the actual or apparent responsibility for enforcing or reporting a breach of the policy. If the only person who was aware of the breach was a co-worker or a supervisor with no manage- rial powers, a condonation argument is un- likely to succeed. In Brazeau v. Interna onal Brotherhood of Electrical Workers, the employee was dis- missed following an investigation into alle- gations that he had sexually harassed a co- worker. e co-worker reported concerns regarding sexual harassment to her superior, but the superior took no steps to discipline or discharge the employee. e trial judge rejected the employee's condonation argu- ment, finding that while the victim's superior had not dealt with the situation adequately, the employer could not be said to have con- doned the misconduct because its interna- tional president, who was the only person with the power to dismiss the employee, had not been made aware of the harassment until he received a report prepared by an external investigator. To avoid condonation issues, employers should ensure that managerial and disci- plinary responsibilities are clearly defined within their organizations. Managers should receive proper training to ensure they are aware of the employer's policies, the conse- quences for breach, and the responsibilities for enforcing policies and reporting breach- es promptly. 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 an employee's violation of an important company policy – that all employees must sign a promise to comply with — is allowed by the employee's manager, can the company discipline the employee once it finds out about the violation? Breach of company policy condoned by manager? HARRIS AND COMPANY, VANCOUVER Suspension of non-union employees Question: Can a non-union employee be suspended without pay, as discipline for serious misconduct such as harassment? Answer: In unionized workplaces, many em- ployers use a system of progressive discipline including reprimands, unpaid suspensions, and ultimately discharge. In the non-union environment, however, an employer may not have the implied right to suspend an employ- ee without pay. An unpaid suspension may give rise to a constructive dismissal. Whether an unpaid suspension will amount to constructive dismissal depends on the particular circumstances. A constructive dismissal claim arising from an unpaid sus- pension will fail if the employer can demon- strate either that the suspension was express- ly or implicitly consistent with the terms and conditions of the employment relationship, or that the employee's misconduct was severe enough to provide just cause for dismissal. Factors a court may consider when deter- mining whether a suspension amounts to a constructive dismissal or a repudiation of the employment contract include: the duration of the suspension; whether another person replaced the suspended employee; whether the employee was asked for her keys; wheth- er the employee continued to receive pay and benefits; whether there is evidence the employer intended to terminate the employ- ment relationship; and whether the employer suspended the employee in good faith: Devlin v. NEMI Northern Energy & Mining Inc. To reduce the risk of an unpaid disciplinary suspension being a constructive dismissal, the right to implement it should be included in the employment contract, employee hand- book, or policies. Also, the right to suspend is more likely to be upheld if there is a mecha- nism for an employee to appeal. Employers must be careful to differentiate between a disciplinary suspension for mis- conduct and an administrative suspension implemented pending investigation into sus- pected misconduct. Generally, an adminis- trative suspension should be with pay, unless there is a specific reason to withhold it. Also, an administrative suspension should be imposed in good faith, and for proper rea- sons. In Potter v. New Brunswick Legal Aid Services Commission, the Supreme Court of Canada ruled that an employer had con- structively dismissed an employee when it placed him on an indefinite paid adminis- trative suspension. e employee had seven years of service and the parties were engaged in discussions on a potential buyout and early departure. In the meantime, unbeknownst to the employee, the chairperson of the em- ployer's board sent a letter to the Minister of Justice recommending that the employee be dismissed for cause and the employer noti- fied the employee's counsel that he was not to return to work until further notice. e court ruled that the employer lacked the express or implied authority to suspend the employee indefinitely. Given the indefinite duration of the suspension, the fact that the employer had failed to act in good faith by providing valid business reasons for the suspension, and the employer's concealed intention to have the employee terminated, the concluded that the employee had been constructively dismissed. For more information see: • Brazeau v. I.B.E.W., 2004 CarswellBC 368 (B.C. S.C.). • Devlin v. NEMI Northern Energy & Mining Inc., 2010 CarswellBC 3474 (B.C. S.C.). • Potter v. New Brunswick (Legal Aid Services Commission), 2015 CarswellNB 87 (S.C.C.). Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgibson@harrisco.com.

• Cover