Canadian Employment Law Today

with Colin Gibson Ask an Expert HARRIS AND COMPANY VANCOUVER Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2016 2 | May 11, 2016 Answer: When deciding on the level of dis- cipline that should be issued in response to workplace misconduct, there are a number of factors that must be considered. ese factors include such things as the environ- ment in which the misconduct occurred, the existence of any safety issues, the seri- ousness of the behaviour, and the individual circumstances of the employees involved. If the conduct of a unionized employee violates a workplace policy, the employer must first consider whether the policy is enforceable, under the requirements es- tablished in Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co. Specifically, the policy must meet the following criteria: • It must not be inconsistent with the col- lective agreement. • It must not be unreasonable. • It must be clear and unequivocal. • It must be brought to the attention of the employee affected before the company can act on it. • e employee concerned must have been notified that a breach of such a rule could result in discharge if the rule is used as a foundation for discharge. • Such a rule should have been consistently enforced by the company from the time it was introduced. Arbitrators expect discipline to be imple- mented by an employer in an even-handed manner. If all other factors are equal, similar cases are expected to be treated alike from a disciplinary perspective. However, there can be important differences based on the individual circumstances of the employees involved, which may justify different disci- plinary responses. Some of the differences that may be relevant include: Record of the employee. No factor will likely figure more importantly in an arbi- trator's assessment of whether a penalty is appropriate than the employment record of the employee. A long and discipline- free employment record will often justify a lighter penalty. On the other hand, employ- ees with short service, poor performance, or a checkered disciplinary history may de- serve a more severe disciplinary response. Employee's state of mind. e state of mind of an employee who was involved in misconduct may be relevant to the level of discipline that is appropriate. For example, was one of the employees involved in the fight provoked? Or was the employee's state of mind affected by a medical condition, or domestic or emotional problems? Conduct during the investigation. How an employee responds during an investiga- tion into alleged misconduct may also be relevant to the level of discipline imple- mented. Factors that can mitigate a disci- plinary response include a sincere apology, admission of responsibility, co-operation in any investigation, and remorse. Conversely, where an employee refuses to acknowledge that her conduct was wrong, lying in the in- vestigation or refusing to offer an apology, can warrant a more severe penalty, includ- ing discharge. In this situation, the employees should receive the same discipline for the fight only if all other circumstances are equal. It is easy to imagine a situation where different discipline may be warranted. For example, "Employee A" is a long-serving employee with a positive work history and no disci- plinary record. Misconduct of this kind is very out of character for Employee A and she offers a sincere apology and assures you that nothing like this will ever happen in the future. "Employee B" on the other hand, has been employed for a shorter period and has had numerous instances of similar misconduct for which she has been disci- plined. Employee B blames Employee A for the fight and refuses to accept that she did anything wrong. Given the difference in be- haviour described here, it is likely that you would be justified in administering differ- ent disciplinary responses to Employee A and Employee B. Similar considerations exist in non- unionized environments as well. Employers should be mindful that they have the appro- priate policies — here a workplace violence policy — in place to deal with workplace misconduct. ey should be clear, unequiv- ocal, brought to the attention of employees, and consistently enforced. is will proper- ly ensure that employees are aware of what is, and what is not, acceptable in the work- place. In the case of misconduct of the kind described in the question, an individualized assessment of each employee's culpability should be undertaken to decide on the level of discipline that is appropriate in the cir- cumstances. For more information see: • Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.). Colin Gibson is a partner with Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgib- son@harrisco.com. 2 | May 11, 2016 Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Disciplining employees for similar misconduct Question: If two employees get into a fight violating a workplace violence policy but there's no clear instigator, does the employer have to mete out similar discipline to each offender? Can one be dismissed and not the other? Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog includes a tool for readers to offer their comments, so discussion is welcome and encouraged. The blog features topics such as miscarriage as a disability, employment contracts, mental stress compensation, and workplace violence. You can view the blog at www.employmentlawtoday.com. A disciplinary response can be mitigated by an apology, admission of responsibility, co-operation, and remorse. Refusal to acknowledge, lying, or refusing to apologize can make the discipline more severe.

• Cover