Canadian Employment Law Today

I showed up to work, where's my parade? How employers can legally motivate employees who are resolute in their unproductivity BY SUNIRA CHAUDHRI H ave you ever found yourself look- ing over at a fellow employee, wondering by what thread he has managed to hang on to his job? Perhaps it is his drinking during the work - day, failure to meet deadlines, continuous smoke breaks or chronic tardiness that has left you gobsmacked. I recently worked with an employer client who was convinced that it simply had to live with the "hand it was dealt" when discuss - ing problem employees. Poppycock! ere is much an employer can do to motivate even the most unenthusiastic employee. Chronic tardiness We have all witnessed employees who stroll in to work after the weekend, balanc- ing an iced latte in one hand and shopping bags in the other, well after the official work day has begun. Chronic tardiness may be cause to terminate the employment of wayward employees provided employers don't condone this behaviour. In the 1998 case of Cain v. Roluf 's Ltd., photographer Suzanne Cain was fired for her frequent tardiness. She was late 65 times in her last year of employment. However Roluf was found to have condoned her behaviour as it never warned her that she would be ter- minated if she didn't show up to work on time. e court did not accept that Roluf had cause to terminate Cain. Conversely, in the earlier decision of El- liott v. Parksville (City), Avril Elliot was tar- dy, failed to perform duties on time, was in- subordinate and had a demotivating impact on staff. She was terminated for cause. Elliot was a secretary and about 44 years of age at trial. For about a two-year period leading up to her dismissal she was often tardy and took extensive breaks for coffee and lunch. e court found that her lackluster work ethic had a disconcerting effect on the rest of the staff and upheld her termination for cause. A single employee who routinely skirts the rules with no recourse will demoral - ize an entire workforce. Time is an objec- tive measure and one can readily discern if an employee has failed to make it to work on time with no possible defence. Employ- ers should monitor and address tardiness instantly to drive down this behavior in the workplace. Working from home Like centaurs and unicorns, work-life bal- ance is the stuff of myth and folklore. Jok- ing aside, the desire to work from home is growing with employees that seek more flexibility in their workday. More often than not, working from home can turn into an employer's biggest nightmare, amplifying an employer's need to super- vise remote employees. Employers must monitor remote employee productivity, routinely handle issues of "time theft" or worse, condone lower productivity and deal with fractured employee engage- ment. Employers are never required to meet employee requests or demands to work from home unless required to do so as a result of a bona fide accommodation request. In that vein, the British Colum- bia Human Rights Tribunal dismissed an application made by Diane Perehudoff in 2015 when she alleged that her employer Zellstoff Celgar Limited (Celgar) discrimi- nated against her when it did not allow her to continue to work from home following a medical related leave. Perehudoff was a 35-year employee of Celgar employed as a Purchasing Assis- tant. From 2009 to 2013, Perehudoff took five medical leaves. Following a four-month medical leave in 2011 she alleged that Cel- gar was intentionally taking steps to force her to resign or retire early and that Celgar, contrary to the B.C. Human Rights Code, refused an accommodation which permit - ted her to work from home. While Perehudoff provided some medical documentation which stated that a medical leave was in order due to anxiety and depres - sion, Celgar argued that her request to work from home was not in connection with any physical or mental disability but was based on her dislike of commuting (especially in the winter); that suffering from "stress" is not itself a disability; and took the position that it didn't have the medical information before it to justify why such an accommodation is medically required. Ultimately the tribunal agreed with Celgar, finding that Perehudoff had no reasonable prospect of establishing that she had a mental disability which pre - vented her from working unless she was allowed to work from home and that her allegation of discrimination on the ground of a disability must be taken as "mere con - jecture." Drinking during the 9-to-5 So far, we have seen cases where an em- ployer has triumphed in the legal sphere over unruly employees. In the recent case Volchoff v. Wright Auto Sales Inc., how- ever, the employer didn't take the steps it needed to prove cause for perceived misconduct. Larry Volchoff, a 63-year-old manager, worked long hours running the employer's Cambridge, Ont., dealership, selling cars and supervising a group of ten workers. Volchoff was terminated for al- leged cause after his employer alleged that he was under the influence of alcohol at work on several occasions and that he al- legedly drove vehicles when impaired. MOST EMPLOYERS have had to deal with problem employees at one time or another. While they may feel it would be nice to get rid of such employees, it may sometimes feel like workers are so protected by employment legislation and dismissal can be so difficult without avoiding reasonable notice costs, it's easier to just endure with these employees. However, there are some things employers can do within the law to coax better performances from poor workers. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: EMPLOYMENT STANDARDS Problem employees don't have to simply be 'the hand employers are dealt.' There is much employers can do.

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