Canadian HR Reporter

CANADIAN HR REPORTER May 30, 2016 INSIGHT 19 Disciplining workers for similar misconduct If two employees get into a fi ght, can an employer dismiss just one of them? Question: If two employees get into a fi ght violating a workplace violence policy but there's no clear instigator, does the em- ployer have to mete out similar discipline to each off ender? Can one be dismissed and not the other? Answer: When deciding on the level of discipline that should be issued in response to workplace misconduct, there are a number of factors that must be considered. ese include the environment in which the misconduct occurred, the existence of any safety issues, the seriousness 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 fi rst consider whether the policy is en- forceable, under the requirements established 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 collective agreement. • It must not be unreasonable. • It must be clear and unequivocal. • It must be brought to the atten- tion of the employee affected before the company can act on it. • e employee concerned must have been notifi ed 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 implemented 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 perspec- tive. However, there can be im- portant diff erences based on the individual circumstances of the employees involved, which may justify diff erent disciplinary re- sponses. Some of the diff erences that may be relevant include: e record of the employee: No factor will likely fi gure more importantly in an arbitrator's as- sessment 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, em- ployees with short service, poor performance or a checkered his- tory may deserve a more severe disciplinary response. e employee's state of mind: e state of mind of an employee who was involved in misconduct may be relevant to the level of dis- cipline that is appropriate. For ex- ample, was one of the employees involved in the fi ght provoked? Or was the employee's state of mind aff ected by a medical condition, or domestic or emotional problems? Conduct during the inves- tigation: How an employee re- sponds during an investigation into alleged misconduct may also be relevant to the level of discipline implemented. Factors that can mitigate a disciplinary response include a sincere apol- ogy, admission of responsibility, co-operation in any investigation and remorse. Conversely, if an employee re- fuses to acknowledge her conduct was wrong, lies in the investiga- tion or refuses to off er an apol- ogy, it can warrant a more severe penalty, including discharge. In this situation, the employees should receive the same discipline for the fi ght only if all other cir- cumstances are equal. It is easy to imagine a situation where diff er- ent discipline may be warranted. For example, employee "A" is a long-serving employee with a positive work history and no dis- ciplinary record. Misconduct of this kind is very out of character and she off ers a sincere apology and assures the employer noth- ing like this will ever happen in the future. Employee "B," on the other hand, has been employed for a shorter time and has had numer- ous instances of similar miscon- duct for which she has been dis- ciplined. Employee B blames em- ployee A for the fi ght and refuses to accept she did anything wrong. Given the difference in be- haviour, it is likely the employer would be justifi ed in administer- ing diff erent disciplinary respons- es to both employees. Similar considerations exist in non-unionized environments as well. Employers should be mind- ful that they have the appropri- ate policies — here a workplace violence policy — in place to deal with workplace misconduct. ese should be clear, unequiv- ocal, brought to the attention of employees and consistently en- forced. is will properly ensure employees are aware of what is acceptable in the workplace. For more information see: •Lumber & Sawmill Workers' Union, Local 2537 v. KVP Co., 1965 CarswellOnt 618 (Ont. Arb.). Colin Gibson is a partner at Harris and Company in Vancouver. He can be reached at (604) 891-2212 or cgib- son@harrisco.com. Colin Gibson TOUGHEST HR QUESTION The distressing reality of 'sexy' uniforms Revealing outfi ts are both sexual harassment and a violation of human rights e issue of employers requiring waitresses to wear sexually revealing outfi ts is start- ing to spill out of restaurants and into the courts and news. Recently, Toronto's Bier Markt chain was in the news for requiring waitresses to wear tight, sexually revealing clothing. Earlier, Andrea Mottu of Victoria won a settlement from her employer after it required her to work in a bikini top. Cases in which organizations re- quire waitresses to wear sexually revealing outfi ts are poised to cre- ate an onslaught of human rights and sexual harassment cases across the country. Most recently, a CBC Marketplace story on wait- ress uniforms further exposed this issue, resulting in one chain, Earls, saying it was changing its dress code to allow waitresses to wear pants if they chose to do so. Much of the discussion has centred on sexy waitress dress codes constituting a human rights breach. However, it is more than that — employers requir- ing such uniforms constitute an institutionalized form of sexual harassment, in addition to being a breach of human rights (discrimi- nation of women). Walk into any of the many pre- mium-casual restaurants (such as Milestones, Earls, Cactus Club or Moxie's) and you will see that waitress-wear has changed with the development of a pseudo- sophisticated restaurant segment aimed at selling dinner with a side of sexual innuendo. In an attempt to diff erentiate themselves as more "upscale," businesses have looked to the en- tertainment industry as a model to emulate with the hope of attract- ing a nightclub clientele of young professionals, typically without dependants, who have greater dis- cretionary income and are looking for entertainment options. But why do we care? If wait- resses want the job and everyone wants to have a few drinks and objectify each other, why should we take issue with this? e fun- damental issue at hand is this is a workplace, and Canadian work- ers are bound to and protected by employment laws — even if these laws restrict business activity that employees and patrons would like to engage in. Now, the sexy waitress phe- nomena is nothing new — Hoot- ers has been in Canada for de- cades. And it at least provides a clear moral position, which wait- resses accept and join willingly, much like any other employee hired into the legal adult enter- tainment business — waitresses are hired to be gawked at by pa- trons while delivering food. The challenge is that while premium-casual waitresses have been hired to sell and serve food to families, their employers have instituted dress policies that require them to wear clothing intended to objectify them. In short, the restaurant has hired waitresses and then forced them to be objectifi ed and, in so doing, it is engaging in a systemic form of sexual harassment. Sexual harassment is any be- haviour of a sexual nature that takes place at work that either is considered unwanted by the per- son aff ected or would be consid- ered as objectively unwelcome be- haviour by a third-party observer. A judge considering the issue of these outfi ts will ask: What is the rationale for better food service derived from requiring waitresses to be scantily clad? e answer: ere is none. As such, the judge would determine the rationale for this outfi t is to objectify the wait- ress, making it a form of sexual harassment. Now some might say this is not sexual harassment since the wait- resses have agreed to wear these outfi ts. But have they really agreed or have they been coerced to be- cause they need a job? If they have been coerced, they are not volun- tary participants, which is the es- sence of sexual harassment. If an employee is coerced to engage in sexual relations with her boss out of fear of losing her job, that is sexual harassment. Similarly, if a waitress is coerced into sexually revealing clothing that makes her feel uncomfortably exposed, that too is sexual harassment. Human rights is leads us to the second issue: Requiring waitresses to be scant- ily clad is a violation of their hu- man rights. Such requirements provide a vehicle for employers to discriminate against women in two key ways. Firstly, because men and women dress diff erently, and because societal norms place a greater emphasis on a woman's physical appearance, the dress re- quirements for male and female staff are more likely to sexualize women. In short, any situation where female waitresses are re- quired to wear diff erent and more sexually revealing outfits than men will be considered a form of discrimination based on gender. e more subtle and malicious form of discrimination is when restaurants deny employment to waitresses because they do not "fi t" the physical profi le sought. In short, when waitresses are not hired or have their employment compromised because of their physical appearance, they are be- ing discriminated against based on their gender. A waitress who is not hired because she is not "sexy" enough or fi red for not having the right body shape — as in the case of a New Brunswick casino wait- ress in 2012 — can bring a gender discrimination case before a hu- man rights tribunal on the basis that the same standard is not ap- plied to men. e requirement to be "sexy" ends up being the explic- it or implicit requirement for the job that is applied diff erentially to female employees, making it discriminatory. So, where do we go from here? If sexy uniforms are both a form of institutionalized sexual harass- ment and a violation of human rights, how will the laws put in place to protect women be en- acted? Firstly, as more and more waitresses or women who have been denied work bring human rights cases forward to human rights tribunals across the coun- try, restaurants will start to take notice. Secondly, a group of waitresses in a restaurant will come togeth- er to issue a sexual harassment complaint against their employer, electing to fi le sexual harassment claims with health and safety tri- bunals. Recognizing that these tribunals have the power to shut employers down for violations, the risks for employers may just be signifi cant enough for them to re- consider the practice of requiring waitresses to wear sexy uniforms. Angus Duff is an assistant professor of human resource management at ompson Rivers University in Ka- mloops, B.C. He may be contacted at aduff @tru.ca. The job requirement for females to be "sexy" makes it discriminatory. e issue of employers requiring waitresses to wear sexually revealing outfi ts is start- ing to spill out of restaurants and into the courts and news. Recently, Toronto's Bier Markt chain was in the news for requiring waitresses to wear tight, sexually revealing clothing. Earlier, Andrea Mottu of Victoria won a settlement from her employer after it required her to work in a bikini top. Angus Duff GUEST COMMENTARY

• Cover